U.S. v. Standefer

• Decision Date: 11 October 1979
• Docket Number: No. 78-1909,78-1909
• Citation: 610 F.2d 1076
• Parties: 79-2 USTC P 9533 UNITED STATES of America v. F. W. STANDEFER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1076

610 F.2d 1076

79-2 USTC P 9533

UNITED STATES of America v. F. W. STANDEFER, Appellant.

No. 78-1909.

United States Court of Appeals, Third Circuit.

Argued Dec. 12, 1978.

Reargued In Banc May 17, 1979.

Decided Aug. 10, 1979.

As Amended Oct. 11, 1979.

Harold Gondelman, Gondelman, Baxter, Mansmann & McVerry, Pittsburgh, Pa., for appellant.

Robert J. Cindrich, U. S. Atty., Craig R. McKey (argued), Asst. U. S. Atty., Frederick W. Thieman, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.

Argued Dec. 12, 1978.

Before ALDISERT, ADAMS and HIGGINBOTHAM, Circuit Judges.

Reargued In Banc May 17, 1979.

Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, GARTH and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

This case arises out of a series of substantial gifts made by the Gulf Oil Corporation and two of its officials to Cyril J. Niederberger, an agent of the Internal Revenue Service and the person charged with auditing Gulf's federal income tax returns. As a result of these alleged improprieties, separate indictments were filed against Gulf, Niederberger, and two Gulf employees, Joseph Fitzgerald and Fred W. Standefer. Standefer, the appellant here, was Gulf's Vice-President of Tax Administration, and Fitzgerald was his immediate subordinate.

Standefer was convicted on all nine counts of an indictment charging him with providing illegal gratuities to a public official, in violation of 18 U.S.C. § 201(f), and with aiding and abetting Niederberger in accepting fees, compensation or rewards, other than as permitted by law, for the performance of his duty, in violation of 26 U.S.C. § 7214(a)(2). Before a panel of this Court, Standefer unsuccessfully raised several challenges to his conviction. The court thereafter ordered rehearing In banc to consider one of these issues in particular: what effect, if any, should Niederberger's acquittal on three of the counts brought against him under § 7214(a)(2) have on Standefer's conviction for aiding and abetting Niederberger in committing the acts charged in those counts.

We conclude that the outcome of Niederberger's prosecution has no effect on Standefer's conviction, and accordingly affirm on all counts.

I. FACTS.

From May, 1971, to June, 1974, Gulf Oil Corporation, through Standefer and Fitzgerald, supplied a number of gifts to Niederberger and his family. Five of these gifts were in the form of paid golfing vacations to various resorts and became the subject matter of the indictments returned against Gulf, Standefer, Niederberger and Fitzgerald. Specifically, Gulf paid for: the hotel bill for the Niederberger family in Pompano Beach, Florida; a four-day trip at 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, Nevada.

Gulf Oil pleaded guilty as to certain counts of the indictment against it, and Fitzgerald entered a plea of Nolo contendere. Niederberger and Standefer elected to submit their cases to juries, and were tried separately. Niederberger, whose trial took place first, was charged with five counts of violating 18 U.S.C. § 201(g), ¹ one for each of the trips listed above, and with five counts of violating 26 U.S.C. § 7214(a)(2), ² also one for each of the trips in question. These statutes forbid the receipt 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 § 201(g) counts, but a not-guilty verdict was returned regarding the Pompano Beach trip. The jury found Niederberger guilty on only two of the § 7214(a)(2) counts, however, acquitting him on the counts that charged him with accepting the trips to Pompano Beach, Absecon and Miami. 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), Cert. denied, 439 U.S. 980, 99 S.Ct. 567, 58 L.Ed.2d 651 (1979).

Standefer was charged with four counts of violating 18 U.S.C. § 201(f), ³ a companion provision to § 201(g). Section 201(f) prohibits the giving or offering of gratuities to a public official for the performance of an official act. These four counts covered all the trips except that to Pompano Beach. Standefer was also charged with five counts of violating § 7214(a)(2), under the theory that he had aided and abetted Niederberger in accepting the five golfing trips. Although, on its face, § 7214(a)(2) applies only to government employees, such a charge is possible under federal law as a result of 18 U.S.C. § 2, ⁴ which allows the punishment of an aider and abettor as if he were a principal. The jury convicted Standefer on all nine counts. He was then sentenced to six months in prison, to be followed by a two-year period of probation, and fined $18,000 $2,000 on each count.

Standefer did not deny that he and Fitzgerald provided the trips in question to Niederberger or that they were paid for with Gulf Oil funds:

Q. You have heard Mr. Fitzgerald testify that there were golf outings and you approved various lunch, travel and expense vouchers. You heard that testimony?

A. Yes, sir.

Q. And that's true, is it not?

A. Yes, siree. ⁵

Thus, despite the refusal of the Niederberger jury to convict Niederberger on either of the Pompano Beach counts, Standefer conceded that he had arranged for payment for Niederberger's Pompano Beach trip:

Q. Now let's take a look at these various dates called trip dates.

Do you remember the incident involving Pompano?

A. Yes, sir, I do.

Q. Did you know that that trip was taking place before it took place?

A. What I recall about that trip, Mr. Fitzgerald came into my office and he mentioned that he planned to be in Coral Gables on business, and at that time that he planned to take a vacation.

He also mentioned and this may have been a week or a few days before he left, and he mentioned to me that Mr. Niederberger planned to be there at the same time, and he said something to the effect that, "We will be getting together to play golf, we will be having dinner together," something alone that line. You know, it wasn't a long, lengthy discussion or anything heavy and so I said, "Well, Fitz, if you are doing that, why don't you pick up Mr. Niederberger's expenses?" ⁶

Similarly, although the Niederberger jury had returned a not guilty verdict on the § 7214(a)(2) counts regarding Miami Beach and Absecon, Standefer also admitted arranging for these gifts. ⁷

Standefer, therefore, did not premise his defense on a denial of the facts that formed the basis of the government charges. Rather, he contended that the gifts were provided as a matter of friendship, and had no relationship to Niederberger's official duties. But here, too, the defense faced a difficult task. As this Court made clear in United States v. Niederberger, neither of the statutes involved in that case obligate the government to prove a specific intent, nor do they require proof of a Quid pro quo. ⁸ Standefer, for all practical purposes, ⁹ confronted the same statutes. To find Standefer guilty here, then, it was not necessary for the jury to find a specific intent on Standefer's part to bribe Niederberger, nor did it need to find that Standefer or Gulf were in any way benefited by actions taken by Niederberger. All that was required in order to convict Standefer was that the jury conclude that the gifts were given by him for or because of Niederberger's official position, and not solely for reasons of friendship or social purposes.

The jury's determination in this regard finds substantial support in the record. Although Standefer argued that the trips were given for reasons of friendship, there is no evidence that he ever provided trips for Niederberger prior to his becoming the IRS case manager for the Gulf account or that he has done so since Niederberger left that position. Nor does anything in the record show that Standefer was as generous with corporate funds in giving gifts to any non-business related friends. ¹⁰ And it appears that Standefer had no social relationship with Niederberger, other than the contact he had with him in their various official capacities. ¹¹ Moreover, Standefer's immediate subordinate and own witness, Fitzgerald, testified that he did not believe Standefer and Niederberger to be "close personal friends," but that he considered them to be only "business friends." ¹² Standefer also regularly submitted, as he was required to do, representation letters to his superiors wherein he stated that all expenditures made or authorized by him, such as the payments for the Niederberger trips, were in the ordinary course of Gulf's business and that there was an "expectation that Gulf (would) benefit directly or indirectly" from such expenditures. ¹³ Most tellingly, Standefer himself, at one point, stated that the purpose of his expenditures was "to establish rapport" with the IRS:

Q. What did you understand your duties to be on connection with the policies of Gulf Oil as to IRS agents?

A. Well, it was My understanding is that I was to develop a rapport; and as a matter of fact, and when I first came into Pittsburgh, I had not made this arrangement, but within a month there was a joint party between the Gulf people and the IRS; and even though we were having all the friction at that point, I observed that it seemed that the people could get out on the golf course and realize that maybe the other ones weren't didn't have horns, and it seemed to improve communications and rapport.

Q. Did you continue that policy?

A. Yes, sir, I did.

Q. What did you consider those expenditures (the vacations provided to Niederberger by Gulf) to be, sir?

A. It was to establish a rapport to relieve tension that built up on one of these big audits. No...