Driscoll v. United States, 6494-6499.

• Decision Date: 31 January 1966
• Docket Number: No. 6494-6499.,6494-6499.
• Citation: 356 F.2d 324
• Parties: James J. DRISCOLL, Defendant, Appellant, v. UNITED STATES of America, Appellee. Edward J. GERAGHTY v. UNITED STATES of America, Appellee. James L. MAGUIRE v. UNITED STATES of America, Appellee. Paul J. WATSON v. UNITED STATES of America, Appellee. William A. YAKABOWICZ v. UNITED STATES of America, Appellee. William J. DWYER v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

356 F.2d 324 (1966)

James J. DRISCOLL, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Edward J. GERAGHTY v. UNITED STATES of America, Appellee.

James L. MAGUIRE v. UNITED STATES of America, Appellee.

Paul J. WATSON v. UNITED STATES of America, Appellee.

William A. YAKABOWICZ v. UNITED STATES of America, Appellee.

William J. DWYER v. UNITED STATES of America, Appellee.

Nos. 6494-6499.

United States Court of Appeals First Circuit.

Heard December 7, 1965.

Decided January 31, 1966.

Francis J. DiMento, Boston, Mass., with whom James J. Sullivan, Jr., Ronald R. Popeo and Paul J. Burns, Boston, Mass., were on brief, for appellants.

William B. Duffy, Jr., Boston, Mass., with whom W. Arthur Garrity, Jr., U. S. Atty., and Edward F. Harrington, Asst. U. S. Atty., were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

These appeals stem from judgments in three separate trials originating from one indictment and two informations for alleged violations of federal wagering tax statutes.

In the first trial, appellants Driscoll, Geraghty, Maguire and Watson were alleged to have conspired together and with others (including appellants Yakabowicz and Dwyer who were named as co-conspirators but not as defendants) to defraud the United States of the $50 special occupational tax imposed on wagering and of the 10% excise tax imposed on wagers. In addition, each of the same four appellants was charged with willful failure to pay the special occupational tax prior to engaging in the business of accepting wagers and receiving wagers for or on behalf of a person liable for the tax on wagers, as required by 26 U.S.C. § 4411.¹ It was also alleged that each of these four appellants willfully failed to register and to file returns as required by 26 U.S.C. § 4412, which counts were dismissed by the court below. The jury returned verdicts of not guilty on the conspiracy counts for all four appellants and guilty on the remaining individual counts charging willful failure to pay the tax.

In the second case appellant Yakabowicz and one Kennedy were charged in one count with willful failure to pay the special occupational tax and, in a second count, with willful failure to register and file returns. As in the first case, the latter count was dismissed. The jury acquitted Kennedy and returned a verdict of guilty against appellant Yakabowicz.

In the third case a jury trial was waived. This case arose out of an information against appellant Dwyer containing two counts. The first count charged willful failure to pay the special occupational tax. The second count charged willful failure to register and file returns (with language identical to the counts which were dismissed in the first and second cases). Neither count was dismissed, motion to dismiss having been denied in toto, and the court found appellant Dwyer guilty under both counts.

I

The first ground for reversal, asserted by all appellants except Dwyer, was the failure of the trial court, on request, to give an instruction that the jury could return a verdict of guilty of the lesser-included offense of non-willful failure to pay the special occupational tax.

The appellants were charged with willful failure to pay the special occupational tax required by 26 U.S.C. § 4411, in violation of 26 U.S.C. § 7203. The statutes create, in 26 U.S.C. § 7262, another crime, the non-willful failure to pay the tax. Since the crime defined in § 7262 contains all the elements of the crime defined in § 7203 except the element of willfulness, and results in a lesser penalty, it creates a lesser offense of which a defendant may be found guilty, in proper circumstances, if he is charged with and tried for a violation of § 7203.

Rule 31(c) of the Federal Rules of Criminal Procedure provides that a defendant may be found guilty of any "offense necessarily included in the offense charged". There is no question but that all of the elements of a non-willful failure to pay are included within the offense of willful failure to pay. The critical question is whether the state of the evidence in these cases required the giving of the lesser offense instruction.

The relevant evidence, in abbreviated form, is the following. In 1957 government agent Green had interviewed appellants Geraghty, Watson, and Maguire, and had presented each with "an affidavit relating to the federal wagering tax law", which each read, said he understood, but refused to sign. In 1960, government agent Savage again interviewed appellants Geraghty and Watson, talked about an affidavit required by the federal wagering tax law, and gave each a copy which he had filled out. This form of affidavit, which was in evidence, set forth that the affiant had been advised of the requirement of the $50 special tax, the 10% excise tax, the records required to be kept, and that he was not engaged in the wagering business. Neither appellant, after reading the affidavit, was willing to sign it. A third witness, Frugoli, gave testimony of being with appellants Watson and Driscoll on premises (The Pen Tavern) used for placing bets, and seeing these appellants, immediately after two lights inside the tavern had been extinguished by a look-out, burning pieces of paper below the bar. A fourth witness, Noonan, testified to a conversation with appellant Yakabowicz about wagering and the need to have a stamp. Yakabowicz answered, according to this witness, that he "had read about it in the newspapers; that I didn't think I needed one, that I was not a gambler."

No rebutting or contradictory evidence was presented. Appellants urge that no evidence was needed to create a dispute as to willfulness, since the issue had been raised by their pleas of not guilty. It was argued that the juries could have disbelieved some of the government's witnesses. Alternatively, say appellants, the juries could have believed the witnesses as to appellants' knowledge of the law but still have found missing the added ingredient of intent to disobey it. In any event, appellants argue that the court was invading the province of the juries in refusing to give them the option of returning verdicts of guilty of non-willful failure to pay the tax.

We disagree as to the cases of all appellants except Driscoll. In his case, because of the nature of the evidence involving him, we think such an instruction should have been given.

The Supreme Court, in Sparf v. United States, 1895, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343, dealt with a conviction for murder and refused to reverse it for failure of the trial court to give a manslaughter instruction to the jury, saying, 156 U.S. at 63-64, 15 S.Ct. at 278:

"A verdict of guilty of an offense less than the one charged would have been in flagrant disregard of all the proof, and in violation by the jury of their obligation to render a true verdict. There was an entire absence of evidence upon which to rest a verdict of guilty of manslaughter or of simple assault. A verdict of that kind would have been the exercise by the jury of the power to commute the punishment for an offense actually committed, and thus impose a punishment different from that prescribed by law."

This was followed, a year later, by Stevenson v. United States, 1896, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980, where the Court reversed the trial court for failure to give the jury a manslaughter alternative, there being considerable evidence of sudden passion on the part of the defendant, as opposed to cold-blooded, deliberate purpose. The Court acknowledged (162 U.S. at 321, 16 S.Ct. at 842) that there may be cases "where the uncontradicted evidence was so clear and overwhelming of a deliberate purpose" that a court might be justified in stating to the jury that the evidence, if believed, would justify conviction only for murder.

Berra v. United States, 1956, 351 U. S. 131, 134, 76 S.Ct. 685, 688, 100 L.Ed. 1013, cites both with approval: Stevenson, for the proposition that a lesser offense charge should be given "if the evidence justified it"; and Sparf, for the proposition that "the role of the jury * * * is to decide only the issues of fact, taking the law as given by the court."

It remained for Sansone v. United States, 1965, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882, to give further guidance. Citing all three cases above noted, the Court said that a lesser-included offense instruction is only proper where there is "a disputed factual element", i. e., where "there are disputed issues of fact which would enable the jury rationally to find" that all elements of the lesser offenses had been proved. 380 U.S. at 351, 85 S.Ct. at 1010. The Supreme Court has long recognized that to hold otherwise "would only invite the jury to pick between the felony and the misdemeanor so as to determine the punishment to be imposed, a duty Congress has traditionally left to the judge." 380 U.S. at 350, n. 6, 85 S.Ct. at 1009.

We take Sansone to mean that when the government has made out a compelling case, uncontroverted on the evidence, on an element required for the charged offense but not for the lesser-included offense, there is a duty on defendant to come forward with some evidence on that issue if he wishes to have the benefit of a lesser-included offense charge. To put it another way, while a judge cannot prevent a jury from rejecting the prosecution's entire case, he is not obligated, under these circumstances, to assist a jury in coming to an irrational conclusion of partial acceptance and partial rejection of the prosecution's case by giving a lesser-included offense instruction. Two prerequisites seem vital: that there be no factual dispute and that a finding contrary to the only evidence on the issue would be irrational.

Both prerequisites exist in the cases of appellants Geraghty, Maguire, Watson, and Yakabowicz. In these cases direct evidence of appellants' knowledge of the existence of the federal...