Berra v. United States

76 S. Ct. 685, 100 L. Ed. 1013, 100 L. Ed. 2d 1013, 351 U.S. 131, 1956 U.S. LEXIS 1794, 1 C.B. 644, 49 A.F.T.R. (P-H) 187

Opinions

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, 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 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 possible had the conviction been under § 3616 (a) alone. The Court of Appeals affirmed, 221 F. 2d 590, and we granted certiorari, 350 U. S. 910, 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 provides that a defendant may be found guilty of an 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. 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. Certainly Rule 31 (c) was never intended to change this traditional function of the jury.⁶ Here, whether § 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.

1 This case arises under the Internal Revenue Code of 1939. The sections involved have been changed in the 1954 Code; see §§7201, 7207, 68A Stat. 851, 853.

2 “Defendant’s Requested Instruction No. 12.

“Under the law you may find the defendant guilty of a lesser crime than the crime charged in each count of the income tax indictment.

“The statute upon which the lesser crime is based, omitting that part of the act which does not apply in this case, reads as follows:

“Whenever any person . . . delivers or discloses to a collector . . . any false or fraudulent . . . return . . . with intent to defeat or evade the . . . assessment intended to be made, shall be guilty of a misdemeanor.

“Under Count I if you find and believe from the evidence that the defendant delivered, caused to be delivered or disclosed to the Collector of Internal Revenue for the First Collection District of Missouri, a false income tax return with intent to defeat or evade the assessment intended to be made, you will find him guilty of this lesser crime.” (This paragraph was repeated for Counts II and III.)

3 In so holding the Court of Appeals followed its earlier decision in Dillon v. United States, 218 F. 2d 97.

4 “Rule 31. Verdict . . . (c) Conviction op Less Offense. The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.”

5 Compare § 7207 of the Internal Revenue Code of 1954, under which the wilful filing of a false return no longer requires the element of an “intent to defeat or evade” taxes, as was so under the former §3616 (a).

6 The Notes of the Advisory Committee state that Rule 31 (c) “is a restatement of existing law.” The preceding “lesser offense” statutes were Act of June 1, 1872, 17 Stat. 196; B. S. § 1035; 18 U. S. C. §565. Cf. Stevenson v. United States, supra, at pp. 315, 322, 323; Sparf v. United States, supra, at p. 103; Ekberg v. United States, 167 F. 2d 380, 385.

7 Indeed, had there been any separate factual issues under §3616 (a), it is plain that the requested instruction would have been inadequate to raise them for the jury.

8 Cf. Andres v. United States, 333 U. S. 740.