U.S. v. Head, s. 79-5293

• Decision Date: 16 April 1981
• Docket Number: 5303 and 6727,Nos. 79-5293,s. 79-5293
• Citation: 641 F.2d 174
• Parties: 7 Fed. R. Evid. Serv. 1339 UNITED STATES of America, Appellee, v. Murdock HEAD (3 Cases), Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 174

641 F.2d 174

7 Fed. R. Evid. Serv. 1339

UNITED STATES of America, Appellee, v. Murdock HEAD (3 Cases), Appellant.

Nos. 79-5293, 5303 and 6727.

United States Court of Appeals Fourth Circuit.

Argued Nov. 13, 1980.

Decided Feb. 9, 1981.

Rehearing Denied April 16, 1981.

Frank W. Dunham, Brian P. Gettings, Washington, D. C. (Wallace H. Kleindienst, Arlington, Va., William L. Jacobson, Third Year Law Student, Leonard, Cohen, Gettings & Sher, Arlington, Va., on brief), for appellant.

David B. Smith, Dept. of Justice, Washington, D. C., Theodore S. Greenberg, Joseph A. Fisher, III, Asst. U. S. Attys., Alexandria, Va. (Justin W. Williams, U. S. Atty., David A. Schneider, Asst. U. S. Atty., Richmond, Va., on brief), for appellee.

Before WINTER, Circuit Judge, FIELD, Senior Circuit Judge, and PHILLIPS, Circuit Judge.

WINTER, Circuit Judge:

Convicted by a jury of conspiracy to achieve three illegal objectives, Murdock Head appeals. ^* He asserts numerous errors in his trial. We agree that the district court committed reversible error when it instructed the jury that it could convict defendant if it found that he conspired to violate any one or more of the three criminal statutes but declined and failed to instruct the jury that it had to find an overt act in furtherance of that conspiracy committed within the applicable period of limitations. We therefore reverse his conviction and award him a new trial. We deal with his other contentions only to the extent that there is a reasonable likelihood that they will arise on retrial.

I.

Head is founder and Executive Director of Airlie Foundation, a tax exempt educational association which produces documentary films. Since its founding in the late 1950's, the Foundation has obtained substantial grants and contracts from the federal government. The Foundation subcontracted its film-making work to Raven's Hollow Limited, a federally taxable entity created by Head in 1963. Much of the federal money received by the Foundation was under the control of a House of Representatives Subcommittee chaired by Congressman Daniel Flood.

The indictment contained thirteen counts. Count one alleged a single conspiracy by Head and fifteen others with the object of committing three offenses: 1) the bribery of Congressman Flood and his aide, Steven Elko, in violation of 18 U.S.C. §§ 201(b) & (f); 2) the giving of a thing of value, i. e. a loan of $11,000 at advantageous rates and forbearance in collecting amounts due, to Jesse Hare, an Internal Revenue agent who performed an audit of the Foundation or related entities in 1969 and 1970, in violation of 18 U.S.C. § 201(f); and 3) the evasion of Raven's Hollow's federal income taxes in violation of 26 U.S.C. §§ 7201 and 7206. The jury returned a verdict of guilty on the conspiracy count and Head was sentenced to three years imprisonment.

The second count, alleging that Head paid a $1000 bribe to Flood in August, 1974, was severed from the remainder of the indictment and later dismissed on the motion of the government. Counts three through seven, relating to the loan to Jesse Hare, were dismissed by the district court following presentation of the government's case. The district court apparently found either that there was no evidence of forbearance by Head or that forbearance was not a thing of value under 18 U.S.C. § 201(f). The remaining six counts dealt with the tax violations. Four were dismissed by the district court for insufficient evidence. The jury acquitted Head on the other two counts.

Other facts will be stated in conjunction with the contentions to which they relate.

II. Failure to Instruct on Statute of Limitations

Count one, as we have said, alleged a conspiracy with three unlawful objects. In its charge to the jury, the district court stated:

The Government ... does not have to prove that Dr. Head conspired with anyone to ... violate all of the three laws I have named, but they have to prove beyond a reasonable doubt ... that he did wilfully and intentionally (conspire to) violate one of the three statutes....

The jury was instructed only to return a general verdict of guilty on the conspiracy count. Head does not argue that the "one is enough" instruction itself was improper. He does contend, however, that, having been given the "one is enough" instruction, the jury could not validly convict him without adequate instructions with regard to each of the criminal objectives of the conspiracy. Head further contends that the district court's instructions regarding two of the objects of the conspiracy the bribery of Flood and the giving of a thing of value to Hare were fatally defective because they failed to address the serious statute of limitations problems raised by the allegations of those object crimes.

The government does not dispute the "general rule" that, in order to avoid the five-year statute of limitations for conspiracies, ¹ it must prove an overt act in furtherance of the conspiracy committed within the limitations period. See United States v. Davis, 533 F.2d 921, 926 (5 Cir. 1976). Count one alleged twenty overt acts in furtherance of the conspiracy, only five of which occurred within five years of the indictment. Of those five acts, only three related to the Flood or Hare objects of the conspiracy. ² In short, with regard to two of the three objects of the conspiracy, the indictment rested in large part on acts occurring without the limitations period. Under these circumstances, there can be no doubt that Head was entitled to an instruction requiring the jury to find an overt act committed within the limitations period before it could find him guilty. The government's only response is that Head failed to request a proper instruction and that any prejudice to Head is too remote to warrant reversal.

The first contention is meritless. The government itself requested the instruction and the defense did not object. After the district court rejected the proposed instruction, defense counsel twice requested the court to instruct the jury that an overt act must be found within the five-year period. ³ Again, after the jury returned a partial verdict acquitting Head on two tax charges, defense counsel repeated his request for the instruction. On each occasion, the district court denied the request. ⁴

The government argues that its proposed instruction was erroneous in two respects, both favorable to the defendant, and that the district court was under no obligation to give a requested instruction that misstates the law. See United States v. L'Hoste, 609 F.2d 796, 805 (5 Cir. 1980). Even if we were convinced that the instruction was inaccurate, ⁵ however, the government's argument would still fail. We cannot conclude, consistent with our adversary system of justice, that defense counsel must step forward to correct arguable government errors favorable to the defendant.

At oral argument and in a post-argument memorandum, the government belatedly asserts that Head's conviction should stand because "the likelihood that Head was prejudiced by the trial court's failure to give a statute of limitations charge is very slim." The government relies on an extensive list of cases from other circuits which purportedly stand for the principle that "an appellate tribunal must grapple with the often difficult question of how likely it is that such prejudice in fact occurred." Here, we are told, it is overwhelmingly likely either that the jury found that the conspiracy related to tax objects not barred by limitations or that the jury found an overt act in furtherance of the bribery objects within five years of the indictment. Despite the government's urging, we fail to perceive with reasonable certainty the basis for the jury's general verdict. ⁶

We recognize that there is conflicting authority on this issue. Several circuits have upheld convictions for multiple-object conspiracies even though one or more of the alleged objects failed properly to define a crime. See, e. g., United States v. Papadakis, 510 F.2d 287, 297 (2 Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975); United States v. Tanner, 471 F.2d 128, 140 (7 Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972). Other circuits have rejected the rule. See, e. g., United States v. Carman, 577 F.2d 556 (9 Cir. 1978); United States v. Baranski, 484 F.2d 556, 560-61 (7 Cir. 1973).

We find the latter series of cases more persuasive. Many of the cases relied upon by the government fail to address the fact that a general jury verdict of guilty may leave a reviewing court uncertain as to which offense or offenses alleged in a multiple-object conspiracy were actually found by a jury. See, e. g., United States v. Papadakis, supra. The cases which acknowledge this problem seek to surmount it by asserting that the conviction of the defendant on a particular substantive count indicates that the jury found the defendant conspired to commit the same offense alleged as an object of conspiracy. In such cases courts have upheld conspiracy convictions even though one object of the conspiracy may have been improperly defined because, the opinions assert, the verdict of guilty on a validly-charged substantive count shows that the jury did not ground a conspiracy conviction on an erroneously-defined object crime. E. g., United States v. Dixon, 536 F.2d 1388, 1401-02 (2 Cir. 1976). ⁷ These cases are inapposite here, however, because Head was acquitted of the only substantive counts submitted to the jury.

More significantly, we agree with the Ninth Circuit's view, expressed in United States v. Carman, 577 F.2d 556, 566-67 (1978), that Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), compels an appellate court to reverse where a general jury verdict renders it impossible to say whether a defendant was convicted under an erroneous or a valid view of the law. In Stromberg the jury returned a general verdict of guilty on...