Berra v. United States, No. 60

CourtUnited States Supreme Court
Writing for the CourtHARLAN
Citation351 U.S. 131,100 L.Ed. 1013,76 S.Ct. 685
Decision Date30 April 1956
Docket NumberNo. 60
PartiesLouis BERRA, Petitioner, v. UNITED STATES of America

351 U.S. 131
76 S.Ct. 685
100 L.Ed. 1013
Louis BERRA, Petitioner,

v.

UNITED STATES of America.

No. 60.
Argued March 26, 1956.
Decided April 30, 1956.

Mr.

Stanley M. Rosenblum, St. Louis, Mo., for petitioner.

Mr. Philip Elman, Washington, D.C., for respondent.

Page 132

Mr. Justice HARLAN delivered the opinion of the Court.

Petitioner was charged, in a three-count indictment, with wilfully attempting to evade federal income taxes for 1951, 1952, and 1953 by filing with the Collector 'false and fraudulent' tax returns, 'in violation of Section 145(b), Title 26, United States Code.'1 That section of the Internal Revenue Code of 1939, 26 U.S.C.A., 53 Stat. 63, provided:

'Any person * * * who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution.'

Section 3616(a) of the 1939 Code, 53 Stat. 440, also made it a crime for any person to deliver to the Collector 'any false or fraudulent list, return, account, or statement, with intent to defeat or evade the valuation, enumeration, or assessment intended to be made * * *.' The penalty for violation of § 3616(a), however, was a fine of not more than $1,000, or imprisonment not exceeding one year, or both, together with the costs of prosecution.

At the close of the trial judge's charge to the jury, petitioner asked that the jury be instructed with respect to each count that a verdict of guilty of the 'lesser crime' under § 3616(a) would be permissible.2 No motions

Page 133

addressed to the validity of the indictment, judgment of conviction, or sentence under § 145(b) were made before, during, or after trial, and we read the requested instruction as aimed at leaving to the jury the question of whether the defendant should be convicted under § 145(b) or § 3616(a), if the jury found him guilty. The instruction was refused, and, after conviction, petitioner was sentenced to four years' imprisonment on each count, the sentences to run concurrently. Thus petitioner has been sentenced to imprisonment greater than the maximum possibile had the conviction been under § 3616(a) alone. The Court of Appeals affirmed, 8 Cir., 221 F.2d 590, and we granted certiorari, 350 U.S. 910, 76 S.Ct. 190, limited to the question of whether it was error for the trial judge to refuse to give the requested instruction.

The Court of Appeals, in affirming the conviction, held that § 3616(a) did not apply to income tax returns, and that any instruction relating to that section would therefore have been irrelevant under the evidence in this case.3 Both parties agree, however, that § 3616(a) was applicable to income tax returns, and we shall assume, arguendo, the correctness of that interpretation of the statute.

Rule 31(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides that a defendant may be found guilty of an

Page 134

offense 'necessarily included in the offense charged.'4 In a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justified it, would no doubt be entitled to an instruction which would permit a finding of guilt of the lesser offense. See Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980. But this is not such a case. For here the method of evasion charged was the filing of a false return, and it is apparent that the facts necessary to prove that petitioner 'willfully' attempted to evade taxes by filing a false return, § 145(b), were identical with those required to prove that he delivered a false return with 'intent' to evade taxes, § 3616(a). In this instance §§ 145(b) and 3616(a) covered precisely the same ground.5

Petitioner contends that he was nevertheless entitled to the requested instruction. He argues that since there was no difference in the proof required to establish violations of §§ 145(b) and 3616(a), the indictment must be taken as charging violations of both sections, and the jury under Rule 31(c) should have been permitted to make the choice between the two crimes. We do not agree.

The role of the jury in a federal criminal case is to decide only the issues of fact, taking the law as given by the court. Sparf v. United States, 156 U.S. 51, 102, 15 S.Ct. 273, 293, 39 L.Ed. 343. Certainly Rule 31(c) was never intended to change this traditional function of the jury.6 Here, whether

Page 135

s 145(b) or § 3616(a) be deemed to govern, the factual issues to be submitted to the jury were the same; the instruction requested by petitioner would not have added any other such issue for the jury's determination.7 When the jury resolved those issues against petitioner, its function was exhausted, since there is here no statutory provision giving to the jury the right to determine the punishment to be imposed after the determination of guilt.8 Whatever other questions might have been raised as to the validity of petitioner's conviction and sentence, because of the assumed overlapping of §§ 145(b) and 3616(a), were questions of law for the court. No such questions are presented here.

The only question before us is whether the jury should have been allowed to decide whether it would apply § 3616(a) rather than § 145(b), and that we hold was not for the jury. It was, therefore, not error to refuse the requested instruction.

Affirmed.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins (dissenting).

The petitioner here was convicted on three counts under an indictment charging that he 'did willfully and knowingly attempt to evade and defeat a large part of the income tax due and owing by him and his wife * * * by filing * * * a false and fraudulent joint income tax

Page 136

return * * * In violation of Section 145(b), Title 26, United States Code.' Section 145(b) provides that:

'any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter * * * shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution.' (Emphasis added.)1

The offense charged in the indictment, filing a fraudulent return, could be held to be proscribed by § 145(b) because of the phrase 'in any manner.' But certainly it falls squarely within the specific language of 26 U.S.C. § 3616(a), 26 U.S.C.A. § 3616(a), which provides that any person who

'Delivers or discloses to the collector or deputy any false or fraudulent list, return, account, or statement, with intent to defeat or evade the * * * assessment intended to be made * * * shall be fined not exceeding $1,000, or be imprisoned not exceeding one year, or both, at the discretion of the court, with costs of prosecution.' (Emphasis...

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253 practice notes
  • Beck v. Alabama, No. 78-6621
    • United States
    • United States Supreme Court
    • June 20, 1980
    ...evidence what the condition of mind was, and to say whether the crime was murder or manslaughter." See also Berra v. United States, 351 U.S. 131, 134, 76 S.Ct. 685, 688, 100 L.Ed. 1013, where Mr. Justice Harlan indicated that the defendant's entitlement to such an instruction could not......
  • State v. Whistnant
    • United States
    • Supreme Court of Connecticut
    • February 12, 1980
    ...States Supreme Court in Sansone v. United States, 380 U.S. 343, 349-50, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965), and Berra v. United States, 351 U.S. 131, 133-34, 76 S.Ct. 685, 100 L.Ed. 1013 (1956). In State v. Vasquez, supra, the court held that the trial court's failure to instruct the jury......
  • Evans v. Birtton, Civ. A. No. 79-0200-H.
    • United States
    • U.S. District Court — Southern District of Alabama
    • June 11, 1979
    ...the rule set out above. See Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956); Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1895). The Keeble Court's opinion is the......
  • Fransaw v. Lynaugh, No. 85-2635
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 23, 1987
    ...offense where that offense is complete upon commission of "some of the elements of the crime charged." Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 688, 100 L.Ed. 1013 (1956). The doctrine "developed at common law to assist the prosecution in cases where the evidence f......
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257 cases
  • Fransaw v. Lynaugh, No. 85-2635
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 23, 1987
    ...unindicted offense where that offense is complete upon commission of "some of the elements of the crime charged." Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 688, 100 L.Ed. 1013 (1956). The doctrine "developed at common law to assist the prosecution in cases where the evidence faile......
  • U.S. v. Whitlock, No. 78-1305
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 4, 1980
    ...offense charged or an offense necessarily included therein if the attempt is an offense." Fed.R.Crim.P. 31(c). 52 Berra v. United States, 351 U.S. 131, 134-135 & n.6, 76 S.Ct. 685, 688 & n.6, 100 L.Ed. 1013, 1018 & n.6 53 Austin v. United States, 127 U.S.App.D.C. 180, 191-193, 382 F.2d 129,......
  • State v. Brown
    • United States
    • Supreme Court of Connecticut
    • May 3, 1972
    ...doctrine of lesser included offenses, see Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882; Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 2 A corequisite of a lesser-included-offense charge, however, is that there be a rational basis for an acquittal on ......
  • State v. Jackson, No. SC93108.
    • United States
    • United States State Supreme Court of Missouri
    • June 24, 2014
    ...so there would be no additional issue for the jury's consideration that would require a separate instruction. Id; Berra v. United States, 351 U.S. 131, 134–35, 76 S.Ct. 685, 100 L.Ed. 1013, (1956), superseded by statute on other grounds as recognized by Sansone, 380 U.S. at 348–49, 85 S.Ct.......
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