Earl Warren: Mr. Rosenblum, you may proceed.
Stanley M. Rosenblum: If the Court please. This case involves the review of a conviction for income tax evasion. On May 28th, 1954, the petitioner was indicted in the United States District Court for the Eastern District of Missouri on three counts of willfully attempting to evade his income taxes for the years 1951, 1952, and 1953 by filing false and fraudulent returns, understating the taxes due and owing to the United States. There was endorsed on the indictment, Section 145 (b) of the Internal Revenue Code of 1939 as the statute violated by petitioner. This statute provides that any person who willfully attempts, in any manner, to evade or defeat his taxes, shall be guilty of a felony, and upon conviction shall be fined not more than $10,000 on prison for not more than five years or both. After a jury trial, petitioner was found guilty as charged on all counts. On October 28th, 1954, the District Court entered its judgement of conviction on each count and sentenced petitioner to four years imprisonment on each count, the terms to run concurrently. The United States Court of Appeals for the Eighth Circuit affirmed these convictions on all counts. The evidence summarized show that the alleged unreported income consisted entirely of funds misappropriated from petitioner's employer, the St. Louis Labor Health Institute, which is a medical center providing medical care and dental care to services -- to members of Teamsters' Local 688 in St. Louis, Missouri, and which institute is supported by financial contributions from employers who have in effect collective bargaining agreements with Teamsters Local 688 in the Greater St. Louis area. Petitioner was a business manager of the institute.He authorized expenditures.He signed and he drew checks on the institute's bank account. The unreported income, alleged and accepted by the jury as true, came from the amounts which he paid out of the institute's funds, amounts which he paid through a certain subcontractor for work and labor which petitioner knew as a matter of fact had never been done, and which amounts on receipt by the subcontractor were turned back by the subcontractor to the petitioner. He also paid out institute funds and the other aspect of the -- of the unreported income was funds that he had paid out to another subcontractor for painting and the building of a ratskeller in his personal residence, that is the signing of checks and the paying out of his employer's funds by work done purely at his personal residence. The amount of taxes evaded was $757 in 1951, $458 in 1952, and $209 in 1953.On each of the three tax evasion counts, the trial court refused to give an instruction, requested by petitioner, which would have told the jury that it could find petitioner guilty of a lesser crime based upon Section 3616 (a) of the Revenue Code of 1939 and Rule 31 (c) of the Federal Rules of Criminal Procedure. Section 3616 (a) provides that any person who 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, and shall be subject to a $1000 fine or one year imprisonment or both. Rule 31 (c) of the Federal Rules of Criminal Procedure provides that the defendant may be found guilty of an offense necessarily included in the offense charged. Specifically, this requested instruction would have told the jury to find the petitioner guilty of a misdemeanor under Section 3616 (a) if it believed that he, the petitioner, the defendant had delivered a false income tax return to the collector with intent to defeat or evade the assessment of his tax. The Court of Appeals rule adversely to the petitioner on -- on this issue relying on its earlier case of Dillon versus the United States. The rationale of the Dillon case is that no lesser instruction was required because Section 3616 (a) is inapplicable to income tax violations. This review here this afternoon is limited to the single question, whether if the trial court should have instructed the jury, the petitioner, who had been indicted for the felony of attempted evasion of income taxes, that is according to the statute endorsed on the indictment, could be convicted of a misdemeanor of filing a fraudulent return with intent to defeat the assessment. Now, at the outset, I think that it will be helpful to the Court if on behalf of the petitioner, I state certain very elementary and certain basic propositions with which the petitioner and the Government are in full and complete accord. First, both are agreed that the United States Court of Appeals for the Eighth Circuit was wrong in holding Section 3616 (a) inapplicable to income tax violations, its legislative history, its collocation in the Internal Revenue Code of 1939. The tacit acceptance by various lower federal courts of the applicability of 3616 to income tax violations and the Government's own use of it to punish certain what it deems in "minor income tax violations" has led the Government to this concession. Secondly, both are agreed that the allegations of the indictment charging offense under Section 3616 (a) as well as under Section 145 (b), the indictment charges a willful attempt to evade income taxes by filing fraudulent returns. It is agreed that both statutes punished exactly the same Act and both punished such a willful attempt. Thirdly, it is agreed that the Government's proof would support a conviction under Section 3616 (a), as well as under Section 145 (b). And lastly, the petitioner and the Government are in perfect agreement that each offense charged here, the felony and the misdemeanor, does not, and I emphasize that again, does not require the proof of a fact not essential to the other. And that under the test laid down by this Court in Pereira versus United States, double jeopardy attaches here so that the Government cannot prosecute and could not have prosecuted this petitioner for both offenses, that is the felony and the misdemeanor. Now --
Harold Burton: Didn't the crime under the first statute failure to pay the payholder while the crime under that 3616 is the failure to deliver or dispose his account?
Stanley M. Rosenblum: Well, Your Honor, I believe that the applicable section of this 145 (b) as in any person who willfully attempts in any manner to defeat or evade his income taxes shall be guilty.
Harold Burton: (Voice Overlap) shall be awfully account, isnt he?Am I reading correctly on page 2 of the Government's brief, the statute, payholder, any tax be imposed or truthfully account for a payover of such tax?
Stanley M. Rosenblum: And any person who willfully attempts in any manner to evade or defeat any tax imposed by -- imposed by this chapter. And it is under this alternate section of 145 (b) that it has been agreed that this indictment was returned.
Felix Frankfurter: May I ask you if -- if the requested charge had been given under this indictment, under the fact that -- or in evidence in this case, was there anything in -- could -- could an offense that an offense have been found under 3616 could not have been found under 145?
Stanley M. Rosenblum: Well, the answer to that, Your Honor, is that I believe not.
Felix Frankfurter: Not.
Stanley M. Rosenblum: I believe not.
Felix Frankfurter: Well, there was nothing to that -- still definitely is in the argument -- state your argument, 3616 and something that was carved out of --
Stanley M. Rosenblum: No.
Felix Frankfurter: -- with the matter which is identical with 145 (b).
Stanley M. Rosenblum: The Government --
Felix Frankfurter: Is that right?
Stanley M. Rosenblum: Yes. The Government and petitioner had an agreement on that. Now, in view of these basic agreements, you might wonder where the area of dispute begins. The area of dispute begins with the Government's seeking to confine the application of Rule 31 (c) of the Federal Rules of Civil -- of Criminal Procedure to the single situation that a lesser offense instruction is entitled, that the defendant is entitled to a lesser offense instruction only where there exist a gradation of offenses. That is a situation in which the greater offense alleged contains -- contains the same elements as a lesser offense plus some aggravating ingredient not found in the lesser included offense. So that if there is a failure of proof in connection with this aggravating ingredient, and the jury is not satisfied of it, then and then only should the Court instruct the jury and may the jury return a verdict finding the defendant guilty of a lesser offense.
Felix Frankfurter: And what is your proposition?
Stanley M. Rosenblum: Our proposition is, Your Honor, that that doesn't tell us the whole story, that we go further, that there is another aspect of the rule including lesser concluded offenses which on reasoning and authority is simply this. That -- and we have no quarrel with the Government's statement of the gradation theory as I call as far as it goes. We accept that propostion. We object to its confinement to the single gradation situation. We say that you go on in the cases whose reasoning is supported that where the indictment, by its terms charges a major offense, and even though a lesser offense is not included in that major offense as a constituent part thereof where the indictment by its terms charges a lesser offense, then the defendant is also entitled to a lesser offense instruction.
Felix Frankfurter: But that doesn't answer my question a minute ago.You agreed that here there was not a difference of offenses between 145 (b) and 3616, what I tell you.
Stanley M. Rosenblum: Correct.
Felix Frankfurter: Well then, how, if there's identity can be lesser or greater -- in any sense lesser and greater as it means?
Stanley M. Rosenblum: In the sense, Your Honor --
Felix Frankfurter: (Voice Overlap) --
Stanley M. Rosenblum: No, all right. In the sense, Your Honor (Voice Overlap)
Felix Frankfurter: -- how lesser can have any just come into play when you got identity.
Stanley M. Rosenblum: In the sense, Your Honor, that there is a difference between a felony and a misdemeanor in a sense, Your Honor, that there is a great difference between subjected to five years in the penitentiary and a $10,000 fine on the one hand and being subjected to one year --
Felix Frankfurter: I understand that but that has nothing to do with the -- the identity or non-identity of new offenses. That has to do without a punishment, should be denied and I'm very sympathetic with your problem, but I do not see how you can invoke the lesser offense now.
Harold Burton: Your -- your position is that if charge is two offenses and one of them is a felony and the one is a misdeamenor, you must charge that he's entitled to be convicted only of the misdeamenor, is that it?
Felix Frankfurter: Only, Your Honor, if the proof required is identical. Only if the proof is required as the same. Now, we say that in that situation, the Government has no election to say, “Well, we'll prosecute this one for a felony and that one for a misdeamenor.”
Felix Frankfurter: Suppose there were nothing, suppose the indictment has no indication under what statute, the thing is broad.
Stanley M. Rosenblum: That's correct. Then I would --
Felix Frankfurter: Then -- then would the judge charge for the jury, you must bring in, since the punishment consist to be equally under 3616 and I lead them to go only a year when under 145 (b), I should give five years, you must tell me what I should give, is that it?
Stanley M. Rosenblum: No, no. The position that I take here and the position taken in the brief that the Government doesn't have the election, that the judge doesn't have the election to determine. Then in order to avoid certain problems, which were raised by the Government's position, that the Court can only sentence under the misdeamenor section.
Felix Frankfurter: Well, tell -- tell me what -- what instruction as the filing of fact because jury finds fact. What instruction as the filing of fact to be judged in that jury?
Stanley M. Rosenblum: That if the jury finds that the facts in alleging the indictment that the defendant has filed a false return with the intent to defeat his assessment that the jury shall return a conviction under Section 3616.
Felix Frankfurter: It's not the business of a jury to label an offense.That's the business of the Court.
Stanley M. Rosenblum: Well, it is our position here, Your Honor, that the Court had no alternative but to sentence under a --
Felix Frankfurter: You may well be -- no, you may well be right as to what sentence should be imposed, but I -- I like to specify my question. What instruction under the division of responsibility between jury and judge, that the judge tell the jury as to what they should file, not what label it should pick up based on it with the consequences of sentence but what difference, what facts should be filed?
Stanley M. Rosenblum: There would be no facts that would be different. There would be absolutely no facts that would be different.
Felix Frankfurter: Then I have nothing more to say.
Stanley M. Rosenblum: However, I don't think that even accepting that position which we quite willingly accepted in the brief, supports the Government's position that it had a choice, an election to prosecute under 145 and that the -- and that the trial judge had the right to sentence under a felony. The reason that we take the position is very simple. How can you say, if there is no rational basis, as Your Honor seems to believe, there is no instruction that can be framed to tell the difference, and -- and we'll accept it?How can you say if there was no rational basis for the judge to have instructed the jury than what rational basis would you by the grand jury in indicting? What rational basis was used by the Government in deciding to proceed under 145 (b)? Then aren't you put in this position that you are saying, "Well, we'll give the Government its election"?
Felix Frankfurter: That's nothing to do with the Government. That's due with the duty of the judge in sentencing. The difficulty of ours is not from the -- from what Government have done but what the Congress have done.
Hugo L. Black: Suppose Congress, instead of doing this, has defined the attempts, said that the judge shall submit to the jury the power to determine whether it's guilty of the felony or the misdeamenor, and the Court shall fix prices accordingly, would that be a valid statute?
Stanley M. Rosenblum: I wouldn't think so, Your Honor, unless you set up some ascertainable standard which is our --
Hugo L. Black: Suppose it claimed that. Suppose they just provide that they jury can as it do in many state, fix punishment and committed of the crime with the punishment, either five years or six months, would that be all right?
Stanley M. Rosenblum: I wouldn't think so.
Hugo L. Black: Do you mean Congress doesn't do that? Couldn't let the jury fix the punishment?
Stanley M. Rosenblum: Not unless there's some --
Hugo L. Black: There's just one attempt there, just take one attempt. And the judge that filed this offense, the jury can fix the punishment with some five --
Stanley M. Rosenblum: For one single offense?
Hugo L. Black: Yes.
Stanley M. Rosenblum: Yes, I misunderstood your question.
Hugo L. Black: All right.
Stanley M. Rosenblum: That will be perfectly all right.
Hugo L. Black: How would you define the same offense and when it choose to do it in that statute, define the same offense instead of simply using the common method of giving the jury the right to fix the punishment with its ranges said they can fix either one that they do it by finding him guilty of the ones that was the greater or the lesser, could they do that? I don't mean to say that much has been done yet, but it's after me like you are arguing rather on that basis. And then you will say, in addition, that since it has done that and by their mere choice of which you, one day, find him guilty of, in determining whether he should have five years or one, are you saying that we should construe the Act and give him authority only to prosecute for the small ones?
Stanley M. Rosenblum: Well, that is correct. We take the position here that the Act should and be construed as giving to the trial judge the power only to sentence for the lesser offense.
Hugo L. Black: Is the Government taking the position that the prosecuting attorney can choose between the two where the --
Stanley M. Rosenblum: Oh, yes, the Government says that --
Hugo L. Black: Just merely by saying we charge him under this one instead of the other one?
Stanley M. Rosenblum: Yes and the Government tells us in Footnote 9 in its brief, page 13, that while it is traditionally used 3616 (a) and its -- its Footnote 9, page 23, “We have traditionally used these two statutes in order to make a choice.” And that what we have done is that even though we recognized it under 3616, there may be technically enough evidence to indict for felony, that there are certain cases of such minor importance. We don't know what minor is that's why I say that's a word in quotation marks to justify the choice of a misdeamenor rather than the felony, then the Government goes on to tell us its a typical example of when we use 3616. We use in the case of a felon who's cheated on his taxes, who's taken too many dependents as false dependents, and that is a typical case that will -- that we use to that extent.
Felix Frankfurter: But the two statutes are not always overlapping. The two statutes says may serve and do serve different consequences. They also infer that in this case that -- that serve to be -- say for this, they also covered that we cite it in a fact that 3616 --
Stanley M. Rosenblum: There may be --
Felix Frankfurter: -- is a more restricted statute than 145 (b), is that right?
Stanley M. Rosenblum: That is correct. There may be certain situations which is not this case underwhich the 3616 and 145 (b) would be different, 145 (b), the double jeopardy, the selection that the Government urges that it has the right to make. There may be certain situations in which the Government will have a perfect right to make the selection.
Hugo L. Black: But were the facts are different?
Stanley M. Rosenblum: Your Honor? What's that?
Hugo L. Black: What do you mean when the facts are different?
Stanley M. Rosenblum: Well, that is correct. Perhaps in the situation where under 3616, no return at all is filed. Now, that could not be in most situations, a violation of 3616 because 3616 requires an affirmative deliverance of disclosing to a collector. Now, there have been at least two cases decided by the Circuit Courts of Appeals where no returns have been filed but there have been other acts of concealment which have constituted a violation of 145. So, it's possible in that very narrow area that they do not overlap.
Hugo L. Black: I presume what you're arguing basically is that, here, the facts would -- identical.
Stanley M. Rosenblum: That's correct.
Hugo L. Black: Insofar as the Act of (Inaudible) concerned, there could be charge on the (Inaudible)
Stanley M. Rosenblum: And were --
Hugo L. Black: But that you are saying that giving criminal statutes a very strict and narrow construction, the Government shouldn't be given the power to prosecute for a greater offense rather than the small ones.
Stanley M. Rosenblum: That is correct. That is substantially our position and that -- it doesn't make any difference of what facts the jury found that this defendant can only be sentenced under what I have called, perhaps mistakenly, a lesser offense. That is an offense in which the penalty is lesser and not in -- and not an offense that I can say as murder is to manslaughter or larceny is to robbery, that there are constituent elements that we can go down and checko off A, B, C, D and then say, “Well, here's an aggravating element to this in present, and therefore, in this respect, it's a lesser included offense.” The basis is that this is a lesser included offense which was independently charged and become --
Felix Frankfurter: Have you -- have you taken a position anywhere in the course of this litigation? That -- that the duty -- that the duty of a judge and the District Judge to inform that only the one year, I repeat, one year, probably?
Stanley M. Rosenblum: Yes. Yes, we have, Your Honor.
Felix Frankfurter: What?
Stanley M. Rosenblum: Yes, we have.
Felix Frankfurter: That it exceeded its power in imposing sentence. That has nothing to do with your charge, isn't it? Your charge has to be that one, do I understand that that should make it moot that Congress for the case of murder, Congress can leave it to the jury, to fix punishment and indicate what punishment. Certainly, it hasn't done for this case and ordinary reading (Inaudible) use of that conclusion. Now, when it comes to that, you might argue it's the duty of the judge where you have two statutes or identically the same conduct out for criminal, one five years and one year, the duty to impose in the assertion. I asked whether you in any way have taken the position that the duty of the judge to impose that and if you take that position before the Court of Appeals, are you taking that to your brief?
Stanley M. Rosenblum: I believe that you will find a suggestion to that effect, Your Honor, in the brief. And the Government accuses us of it and we agree we're guilty of it that we say in effect, “Yes, that you can't sentence any more than under 3616.” The Government says, "Well, you're trying to appeal by implication Section 145 (b), the assumption being that that's bad."
Felix Frankfurter: But your position that the petitioner be consummated?
Stanley M. Rosenblum: No, Your Honor. The petitioner served eight months at the United States Penitentiary in Terre Haute. And when certiorari was granted in the case of the United States versus Dillon, which presented this very same issue, a motion for bail was presented to Mr. Justice Clark. It was not opposed by the Government. The question was conceivably susbstantial and he's been out of Terre Haute for about the last year.
Felix Frankfurter: And he served the, what would be a year sentence?
Stanley M. Rosenblum: Only eight months.
Felix Frankfurter: So that if -- if that crime is taken, then -- then the problem arises and that you thought to get him out on habeas corpus on that theory that the (Inaudible) if we have a difference question, wouldn't we?
Felix Frankfurter: It might be, yes, but of course, keep in mind that he was convicted here on three counts and the trial should --
Felix Frankfurter: (Inaudible)
Stanley M. Rosenblum: Yes, but if the question is a matter of resentencing, and -- and we can see that under the Government's theory in a position we would agree with, that perhaps the question here is one of resentencing, that he's not entitled to a new trial because there would be nothing that the jury could find different than it's found the first time. So, maybe the question is we send him back to resentencing under the, what I call the lesser offense and the trial judge, the -- the misdemeanor and the trial judge would sentence him in accordance with that. That is true, if the Court accepts the Government's hypothesis that there is no difference between the two statutes, and that they both require exactly the same proof. Now, as the Court will see in our main brief, I have made the suggestion that it is most difficult, and I have nothing at all to go on except a -- an analogy between murder and manslaughter that perhaps if there is a difference between the two, perhaps there is a difference and maybe the difference is in the different required quantum of intent. But as I say, there is nothing in legislative history to suggest that it was merely an attempt to perhaps find some way of accommodating these two statutes. But if the Government's position is correct that they cover exactly the same things, that wouldn't be true at all, and the question here is primarily one of what prejudice was there to the defendant? The only prejudice is that perhaps he could have been -- perhaps he was found guilty of the lesser offense and perhaps he should have been sentenced under what I call a lesser offense, so we'll send him back for resentencing and there's no need for a retrial. And that is certainly a position which could be taken, if under the Government's position. I think it's -- it's the logical result of the Government's position. It had to. I asked the Court to -- to tolerate us, at least in this respect, that we didn't know what concessions the Government were -- was going to make. And as a matter of fact, it's been long my personal opinion that we would never be here if the Solicitor General hadn't confessed that the Eighth Circuit was wrong in its rationale with the Dillon case, and the Government is concerned. What the Government wants, they want this happy little situation where they can prosecute A, under a misdemeanor, he's not such a bad fellow, he only took six extra dependents. He's bad, he should be prosecuted but under a felony, but people who steal from their employers, labor leaders, they're very bad and they ought to be prosecuted for felonies. And the only thing that the Government tells us in this brief and -- and the only safeguard, and the only ascertainable standard that they suggest on Footnote 14 at page 30 is the supervision of the Justice Department in a high degree of discretion to be be rendered by the United States Attorney by the grand jury. To -- to me, that doesn't seem satisfactory, and that is our basic objection. And that is the position that we take when we say that there is no ascertainable standard which the Government suggest. There is nothing, except this business of a minor offense, an offense of minor importance. What is an offense of minor, is it money, $1500 over a three-year period? I don't think anyone would say that's a big tax case, tax evasion case. Is it the percentage of income which has been evaded? Is that the test? Well, in these cases, 50% one year, 40% another, and about 22% another, pretty big percentages. But where do we go and how is the Government exercising this discretion?
Felix Frankfurter: And it wasn't ruled on this law of transgression from trying to about it. That confronts the U.S. Attorney everyday in all sorts of ways, there hasn't been any -- such as a grandjury indictment, the front view for the attempts which may lead to X years or under a statutes on the same facts or growing out of the same facts which would only give a sentence of X minus five years.
Stanley M. Rosenblum: I don't agree with that, and I don't agree with it --
Felix Frankfurter: You can't disagree because that's done every day in the U.S. Attorney's office.
Stanley M. Rosenblum: All right. But -- but what I would say to you that at least he has different statutes which require different proof.
Felix Frankfurter: I'm just saying there's a large area of discretion which is inescapable.
Stanley M. Rosenblum: But the statute itself tells a district attorney what the difference in proof is, what the standard is and that we don't have here. That's the point that I make. Yes, let him choose between a felony and a misdemeanor, as long as the statute itself says, “Well, there's a different proof,” and you're not immunizing the defendant from later prosecution for the felony under the Pereira case under double jeopardy by saying, "Well, we'll go after him on a misdemeanor," because that's exactly what happens here.
Felix Frankfurter: Your (Inaudible) shows to tell you to state that -- that so far as the jury knows, not one with of a different charge goes to the jury under one statute than the other. And what's the whole argument by then considers (Inaudible) is a problem of sentences. And no use of taking a rule lesser included in the greater offense and make it stand on its head and make less of equal identity.
Stanley M. Rosenblum: Well, I think Your Honor, that stems from a basic disagreement. I don't know what you mean by lesser included offense.
Felix Frankfurter: Well, lesser means less than something different in – as a linear thing, six inches is less than nine inches, or A equals A or X equals X or X equals S, can you demonstrate X equals lesser unless you would give us something then talk by those meanings.
Stanley M. Rosenblum: Well, let's look at a case in which the Government relies. It's not a -- it's not a -- a recent case, it's an old case, but I think it illustrates what at least I mean by a lesser included offense. I think you'll find the case, it's -- it's an old case, United States versus Dickson, page 18 of the Government's brief. The Government tells us that here is a familiar illustration of what we mean by a "lesser included offense." When an indictment for burglary supports a conviction for larceny but the jury isn't satisfied as to the breaking and entering during the nighttime, so the Government tells us, "Well, it's all right in that case to return the conviction for larceny." Now, if you read that case carefully, as I read it, at that time, burglary carried the death penalty. As a matter of fact, the judge call this defendant back several times. He said, "Do you know what you're doing? You're pleading guilty to something that you could be sentenced to death warrant." Finally, he withdrew his plea of guilty and he went to trial on a burglary. Now, I ask you. Can element for element, is larceny a constituent offense under burglary? I submit that it is not. That burglary requires the breaking and entering the dwelling house to another at night with intent to commit a felony therein. It doesn't require any taking and carrying away of the personal property of another, and I submit that it was not. That if you accept the Government's own interpretation, that their reliance on this case is misplaced, but, I think that the Dickson case, and I say it's only an old case, 1807 Circuit Court. The only way that that case will be explained is that the indictment charged the larceny with taking and carrying away in -- as a lesser offense as something within the indictment, less than the burglary, that the jury wasn't satisfied. And the only way that that page can be explained is that the larceny carried with it a penalty of 39 stripes, with the whip, as contrast with the death sentence. And in this sense, it was a lesser included offense because it was charged with an indictment, and that is our basic quarrel with a gradation theory as -- as put forth here by the Government. It was a -- logically, there's no reasoning, there's no authority for it, that if you're not going to be bound by the statute number, if the prosecution can convict under any statute, then the defendant should be able to rely on any statute which the indictment charges and which the allegation support, especially if it's a lesser offense and we say that this is not only fair to the defendant, but it's just as fair to the prosecution. Why should the defendant be acquitted? Simply because element for element, every allegation in the indictment isn't proved. If failing one allegation, the defendant has been advised of the allegations. The defendant has had ample opportunity to defend. Why should he be acquitted and then tried anew on a lesser charge of offense? He should be prepared and he's been given ample notice to defend against every allegation in the indictment, and we submit that in that sense, this petitioner was prejudiced because he -- there was not given a lesser included offense and he was prejudiced because he was not sentenced for a lesser included offense, the only offense which he could properly be sentenced on under -- under the Government's theory, under the concessions and on the agreements into which we willingly entered.
Earl Warren: Mr. Elman.
Philip Elman: May it please the Court. I should like to state at the outset that neither in the trial court or in the Court of Appeals, nor in this Court, has the petitioner challenged the legality of the sentence that was imposed. The sole question presented in the petition for certiorari, as to which the Court granted review, is whether the trial court erred in refusing to give the requested lesser offense instruction.
Earl Warren: But you opened it up, didn't you, in your brief? Why didn't you go beyond that?
Philip Elman: I mean, I should be very happy to argue the point, sir, if the Court considers it open.
Earl Warren: You did opened it up, didn't you, and go farther than that?
Philip Elman: We argued, sir that the petitioner's contention as to the lesser included offense instruction, if accepted, would in effect repeal Section 145 (b) as applied to the filing of false and fraudulent returns. I don't know whether the Court considers the legality of the sentence issue open. If the Court does consider it open, I'm prepared to argue it.
Earl Warren: Well, I'd like to hear it argued, please.
Philip Elman: Yes, sir, I'd be very happy. The function of the --
Stanley Reed: No question referred by anyone as to the validity of either one of the statutes.
Philip Elman: The -- the petitioner's position and ours is that Section 145 and Section 3616 (a), both appearing in the same statute 1939 Code, are both valid. They both can stand side by side neither impliedly repeals or modifies the other. Now, this case --
Hugo L. Black: Well, do you agree -- I don't like to bother you with that.
Philip Elman: I'm fine. I'm very happy with that.
Hugo L. Black: (Voice Overlap) Do you agree with me on -- on the facts on this case, they could be convicted on that either?
Philip Elman: Yes, sir. I would -- I would certainly agree to that. This is a case where the indictment was -- was valid under either statute and it might be held that the outset --
Hugo L. Black: (Voice Overlap) require anymore proof of the judgment --
Philip Elman: No, sir.
Hugo L. Black: -- to convict of the one than the other.
Philip Elman: No, sir. If there -- if there had been no citation of a statute in the indictment, if the citation had been omitted, notwithstanding the requirement of Rule 7c that it'd be specified. But if there had been no statutory citation in the indictment, it would be clear or at least, petitioner and the Government agreed that it would be clear that the indictment set forth a violation, not only under 3616 (a) but also under 145 (b). We also agree that the proof in this case would support conviction under either statute. And in essence, even though the issue as tendered to the Court has been cast in terms of the lesser included offense instruction in view of the general direction, the argument has taken, I think it had -- what we've -- we've really discovered that the -- the disagreement here is a somewhat at different proposition. This agreement is -- as to what should be done in the case of overlapping criminal statutes, in the case of two statutes which are not identical, two statutes which are not co-extensive, but which to a substantial extent overlap. Now, in most cases that have come before this Court in involving overlapping statutes, the -- the Court has been confronted with an argument that a later statute dealing with a more specific subject matter, carrying a lesser penalty has repealed or superceded an earlier statute which is more general, which carries a more severe penalty. That was the situation in the Gilliland case and in the Novak case, and this Court has recognized that overlapping provisions in the federal common law -- in the federal criminal law are a common place that the penal provisions in the United States Code are not like a mosaic or a jigsaw puzzle in which every piece neatly interlocks which there are no gaps and no overlaps. That isn't the basis on which legislation is enacted. Congress enacts legislation to meet a particular need. And in the field of frauds upon the United States in the field of making a false statements to -- to representatives, agencies of the United States, Congress has been especially, or shall I say, zealous, to prevent any loopholes in its legislation. And the result is that Congress has not only acted abundantly, it's acted redundantly. And the -- and here we have the same statute, 1939 Revenue Code, which in one section, 145 (b) makes it a felony to attempt willfully, to evade taxes, income taxes, only I should say, I should mention and I stress it because 145 (b) doesn't apply to any other kind of federal taxes. 145 (b) says that as to income taxes, evasion in any form is a felony, and that 99% of the cases that have arisen under 145 (b), the evasion has taken the form of filing a false and fraudulent return. In 3616 (a) of the same statute, Congress has said that the filing was a delivery of any tax return, not merely income tax returns, but all tax returns shall be a misdemeanor.
Felix Frankfurter: That means to say it has --
Philip Elman: It says -- well, it says any return. Now --
Felix Frankfurter: What is the date -- what -- what does he argue? What is the terror to this statute?
Philip Elman: This statute, 3616 (a) goes back to the Revenue Act of 1798 that's been reenacted time and again --
Felix Frankfurter: That explains the word -- that explains the word “evaluation.” I'd take it, that's the first customs.
Philip Elman: Customs, excised taxes, floor stock taxes. Now, this -- these -- both these statutes have a history. That the Revenue Act of 1917, for the first time, included a prohibition of income tax evasion; 145 (b) goes back to 1917, 3616 (a) goes back to 1798, and both have emerged in a full fruition in the 1939 Code and there they are, they -- they are side by side. If there is an overlap, that the overlap does not arise by any act of the Attorney General, it arises by act of Congress. And the Court in a -- in cases which are so familiar that it's unnecessary to cite them here, has sent and repeals by implication are not favored. The mere fact that two laws covered the same ground does not lead to the conclusion that there's -- a supersession was intended. If there is a repeal, it -- intent of Congress to repeal must be clear and manifest that there must be a positive repugnancy between the old provisions and the new provisions. Now, here, all we have is a redundancy, not between old and new provisions but in the same statute. And if there is a repeal by implication, which statute is to be repealed? Which is the older statute? Which is the newer statute? Which is the general statute? Which is the more specific statute? 3616 (a) is comprehensive as to all returns. It goes beyond 145 (b) which is limited to income tax evasions 145 (b), however, is more comprehensive than 3616 (a) because it covers all evasions even those not involving the filing of false return. Now, there is a difference between the two. The difference is that one is a felony and the other is a misdemeanor. Now, as to the income tax, there was a very good reason for Congress to be especially alert to impose a severe penalty because the income tax law, as the Court had said in several cases, is based on a system of voluntary disclosure of self-assessment. And that a filing of a false customs return might seem, to Congress, to be a -- a -- an offense not justifying a more severe penalty than the years of imprisonment. But what --
Earl Warren: Are you expecting there Mr. Elman that the Congress intended to give the District Attorney unlimited choice between charging a man with a felony and a misdemeanor for the same conduct?
Philip Elman: Well, we're not arguing, if I may answer the question this way. Insofar as the intent of Congress is concerned, sir, there's nothing in the legislative history that we know of.
Earl Warren: But you were just talking about what Congress intended to do in income taxes as I understood you.
Philip Elman: Well, the intention of Congress on this must appear from its provision, from what Congress did. The statute does punish income tax evasions in all forms, in any manner, and as I said before, if I -- if I had to make an arithmetic estimate, I would say that 99.5% at least of the 145 (b) income tax evasion cases are the filing of a false and fraudulent return understating the tax due. Now, if -- if Congress, by going beyond 145 (b) in reenacting the substance of 3616 (a), has withdrawn from 145 (b), what is the most flagrant, the most obvious form of income tax evasion and they died a misdemeanor? It would seem -- it would seem -- and I must add too that the 145 (b) was made a felony in -- the Revenue Act of 1924, 32 years ago. And 3616 (a) and 145 (b) have -- have stood side by side over the years and this is the first case in which the suggestion has been made and it -- and it -- and I say, it comes in rather obliquely because it -- certainly, this was not -- not been contended explicitly before this -- this afternoon that 3616 (a) has cut into the prohibitions of 145 (b). And it's -- it's difficult for -- it would seem to us that if -- if the Court should now hold that because of the duplication coverage of the two provisions that a taxpayer who files a false and fraudulent income tax return with an intent -- the intent to evade the tax can be given only the maximum sentence provided by 3616 (a). It would seem to us that what it comes down to is -- is carving out of 145 (b) the very heart of the -- of the provision as it's been applied by the courts, including this Court, over the years.
Earl Warren: Unless the 145 broken down in the statute and don't they -- don't they specify various crimes that -- that are of the nature of 145 (b)?
Philip Elman: Well, the -- the --
Earl Warren: So far as as primary tax is concerned.
Philip Elman: Yes, sir, 145 (b) covers a failure to pay over any tax.
Earl Warren: Yes.
Philip Elman: Failure to collect the truth for the account, go and pay over the tax and any person who willfully attempt, in any manner to evade or defeat any tax imposed by this chapter. And it's under the latter provision that the overwhelming bulk of violations of 145 (b) occurs in a --
Earl Warren: But what do you mean exactly rather sections of the Internal Revenue Code that prohibit violations of it --
Philip Elman: Yes, sir.
Earl Warren: -- that -- that would be included by his --
Philip Elman: Not only --
Earl Warren: -- his cover all --
Philip Elman: Not only --
Earl Warren: -- in Section 145?
Philip Elman: Not only in the Internal Revenue Code, Mr. Chief Justice. A person who willfully files false income tax return not only violates 145 (b), 3616 (a), but he probably also violates the general false statement statute, 18 U.S.C. 1001. If -- if there's a claim for refund involved, he may violate the false claim statute, 18 U.S.C. 287. And he may prove permits, he -- he may be found to violate 30809 (a), I believe it is, of the -- of the Internal Revenue Code which makes it a felony to willfully subscribe to any tax return, not believing into the -- completely true in every particular. And we -- we don't deny that -- that Congress has -- has really enacted provisions which -- which duplicate one another and which perhaps might be -- be unnecessary that's been in an over and abundance of -- of care on the part of Congress to -- to see to it that no one escapes the net. Now, the -- the problem hasn't arisen before because these other provisions don't carry a lesser punishment than 145 (b). Now, this case, this case in the Dillon case, for the first time presented a -- a situation where a defendant requested the jury to decide which of these two statutes was violated. And as -- has been brought out here, it's not the -- the jury is essentially a fact-finding body. It's not the function of a jury to decide the question which of the two -- of two or more statutes have been violated. Now, if the judge in this case had considered that the circumstances and the gravity of the offense were suce that a -- a lesser punishment should be imposed, there was no reason why he couldn't impose a sentence of one day or one year, or not at all.The question of punishment is not for the jury. Now, that was the error asserted below. That was the error passed down below. That was the question presented here, and on that question, we think there can be only one answer that the requested instruction, had it been given, would have required the jury to exercise a judgement. It would have given the jury no basis or standard upon which the jury could intelligently and rationally exercise a judgement, and it would have been a judgement not as to a question of fact within the traditional prerogative of the jury but it would be on the question of law, a question of which of two statutes enacted by Congress applies here.
Hugo L. Black: Would it -- would it be that fair if the -- if it -- if both statutes applied, if both statutes applied in fact that are identical, why would it be placed as facts to the jury by guilt as concerned?It might be a question of gradation of which it extends punishment?
Philip Elman: Well, the issue of guilt or innocence was submitted to the jury.
Hugo L. Black: And they have -- and they submitted as to both as to this one too.
Philip Elman: But -- but the petitioner did not -- did not ask anything more than that the jury be allowed to bring in a verdict of guilt which would -- which would say, “Guilty under 3616 (a) and not 145(b).” Now, the jury, never in its verdict, says, specify as a statute which is violated. All the jury says he's guilty as charged, not guilty as charged, and that's what happened here.
Hugo L. Black: It's ordinarily true but I assume it could that the -- the law has provided --
Philip Elman: Well, I --
Hugo L. Black: -- that they had the right to determine under a different challenge.
Philip Elman: Well, on what basis --
Hugo L. Black: (Voice Overlap) difference between in this case from this one, I think may be the answer -- and I'd like to get to it as (Voice Overlap).
Philip Elman: Yes, sir.
Hugo L. Black: Suppose Congress at 140 -- Section 145 had said that it should be a felony punishable by 10 years in penitentiary, steals $20 from a store. Suppose, it said in 145 (a) it should be a misdemeanor punishable by six months fine -- in -- in a jail to steal $20 from a store, which law would govern and what's the difference in that -- this. I mentioned the odds of the proceeding?
Philip Elman: Yes, sir, there would be substantial difference --
Hugo L. Black: In fact with the facts that I'm giving you one on a different kind.
Philip Elman: The question of which law would govern might arise in the -- in a variety of context. I'm not pretending to avoid the answer. If it comes up on a motion to dismiss the indictment, the -- the question would -- would -- the answer to that question would be, it wouldn't make any difference which law would govern -- govern because the indictment is valid under either. If the question arises in a -- in a -- in this context where a requested instruction of the jury is -- is offered, we would -- we wouldn't say that it is not the jury's function to decide which law governs.If the question arises under the sentence and the power of sentencing get the authority --
Hugo L. Black: (Voice Overlap) the procedure of -- what I want to know is, what would be the effect of two laws like that assuming that they've raised whatever is to be raised in the proper manner? Can -- if it's your idea that Congress should make crimes of that kind and have one a felony and one a misdemeanor but they are precisely the same thing, just one section following the other?
Philip Elman: I think, Mr. Justice that if Congress were to enact the law saying that murder shall be a felony or a misdemeanor and the discretion of the Attorney General or the discretion of the jury (Voice Overlap) I think it would be a serious constitutional question.
Hugo L. Black: Yes.
Philip Elman: I think so.
Hugo L. Black: Well, that -- that was --
Philip Elman: But I don't think that's this case, because Congress hasn't said -- Congress hasn't said the filing of a false income tax return shall be either a felony or a misdemeanor.
Hugo L. Black: But it is here, isn't it? It could be the one in jeopardy that's under these facts.
Philip Elman: Under the -- under the indictment in this case --
Hugo L. Black: And the facts.
Philip Elman: And the facts, a conviction under either statute is valid. But this is -- but it seems to us that there's a serious difference between a case in which Congress, which has the power to classify offenses according to felonies and misdemeanors in effect delegates that power to a prosecutor, the jury without giving any ascertainable rational standard, that's one case. It's not this case.
Hugo L. Black: But has there been any standard given here?
Philip Elman: There isn't any -- there isn't any standard given here, sir, because there's no -- there's -- there's no choice that was made here by the Attorney General. There was no choice here.
Hugo L. Black: Who made the choice? It could have been prosecuted under either. Somebody has to make a choice.
Philip Elman: No. The question, if I may say so, there's no question. The -- we don't rely on the proposition this indictment says 145 (b) because if the indictment were blank on that, we would still say that the trial court was empowered under a -- a statute of the United States making tax evasion an offense to impose a four-year sentence.
Hugo L. Black: Even -- even though --
Philip Elman: He doesn't have to have an -- an Attorney General write a citation of the indictment.
Hugo L. Black: But what -- when you have, you have in effect -- I'm not talking about actually, you have in effect two statutes, both of which provides punishment, define a particular crime and this instance is precisely the same way, as I understand it, covered precisely the same facts, it makes one a felony and one a misdemeanor. And whatever they've raised, I -- I think they've raised something so that that they could be considered here --
Philip Elman: Well, let me --
Hugo L. Black: What I'm concerned, they've raised the question as to whether, I would suppose, at least, whether it should be held that the Attorney General or the prosecuting officer or the judge or anybody else can just pick one of them out and they were given the (Inaudible)
Philip Elman: Mr. Justice, this argument -- this argument is not a new one. For example, in the Gilliland case, which came before you in -- in 312 U.S., that was an indictment under Section 35, the old Criminal Code, the false -- the general galse statement statute making it a felony punishable by 10 years imprisonment to -- to a -- make a false statement to a government agency. The indictment in that case charged that the defendant had made a false statement to the Secretary of the Interior in a matter under the Hot Oil Act of 1935. The defendant came to this Court and argue that under the Hot Oil Act, the -- the making of a false statement to the Secretary of the Interior in a matter under that Act was punishable as a misdemeanor by only six months imprisonment. And he argued that Congress and the Hot Oil Act of 1935 must have intended that the specific provision of that Act should govern false statements made under it. And he argued and the argument is -- is recorded in 312 U.S., and prior to the opinion, the argument was made by the defendant. This gives the Attorney General an election at his discretion to punish an offender under either the general false statement statute of felony or under the -- on the specific statute. And this Court, in the opinion by Mr. Chief Justice Hughes, unanimously held that -- that the two statutes can exist side by side. They compliment one another unless -- unless that the Court has some clear and specific indication from Congress beyond the mere fact of redundancy that the specific provision was intended to cut in on the -- on the general provision. There's no reason why the laws can't -- can't be enforced together, and that -- that –-
Hugo L. Black: Well, that –-
Philip Elman: That's a fortiori from this case.
Hugo L. Black: But that's -- that I -- but I just want to find that out from you. Do you -- is it your position that the Gilliland case precisely like that and that there, Congress had two separate acts which were made precisely at the same conduct and offense --
Philip Elman: That was conceded in that case.
Hugo L. Black: (Voice Overlap) –-
Philip Elman: In the -- that was stated in the Gilliland case. That was conceded. The Government could have -- the indictment could have born --
Hugo L. Black: I'm not -- I'm not talking about "could have," but at the same language or was a different statutes in different language and if -- if not, they were the same. Were the Acts here the same that could have been punished under the other?
Philip Elman: The -- the language of two statutes was not precisely identical but they are closer to one another than the two statutes here because in Gilliland case, you had general false statement statute about making false statements to an -- a representative or agency of the United States, and the Hot Oil Act said, “Making a false statement to the Secretary of the Interior on a -- on the form provided for by his regulations, you see. But if you made a -- if you made a misstatement on the return provided for in the regulations, you violated not only the specific provision, Hot Oil Act, but the general provision of false statement statute.” This -- these two statutes are not even as close together as though is because 3616 (a) speaks of returns and 145 (b) does not. It was -- as I said before, if -- if the Gilliland case gave the Court no difficulty, it seems to us that this case where the two conflicting -- the two duplicating provisions appear in the same statute, it would be the first time. It seems that we would know of -- of the Court holding the Congress by implication has repealed one provision of a statute by another provision in the same statute.
Felix Frankfurter: Mr. Elman, before you sit down, I'd like to, if I might have stated what really is this -- this case is about? Because as I understand it, this was -- the error was alleged the failure to give a charge, and it's alleged that that entitled the defendant of a new trial. Proper charge was denied, and in the effect of the outcome, they decided to a new trial. That was the issue that went up to the Court of Appeals.
Philip Elman: Yes, sir.
Felix Frankfurter: That's the issue before the Court of Appeals. Now I was --
Philip Elman: Certiorari was limited to that issue.
Felix Frankfurter: When we --
Philip Elman: Certiorari was --
Felix Frankfurter: (Voice Overlap) namely, refusal to grant a charge which it was error to refuse. Now, I would like to know where that charge is in the record.
Philip Elman: 216.
Philip Elman: 216. Now, what I would like to know --
Philip Elman: Then it's requested instruction number 12.
Felix Frankfurter: Number 12, not the end of it. I see Section 3616 (a) Title 26.
Philip Elman: Yes.
Felix Frankfurter: That's evidently part of the requested charge that's being denied.
Philip Elman: That's right.
Felix Frankfurter: What I want to know is what is there in that charge that bears on the allegations of the indictment? What is there in the requested charge that was denied which was relevant to that charge in the indictment because it's not given by the trial court?
Philip Elman: The answer is nothing. That the --
Felix Frankfurter: But ultimately an error in that offenses.
Philip Elman: On page -- if Your Honor is going to the record, I would suggest too that you look at one --
Felix Frankfurter: Sometimes it's not under the record in the case.
Philip Elman: I will not quarrel with you on that. At page 191 of the record, the trial court did instruct the jury as to the ingredients of the offense charged in the indictment. He -- he said, “Before the defendant can be held criminally responsible, the Government must prove beyond the reasonable doubt the return is false and fraudulent, then it knew the return was false and fraudulent, then it would be intent to evade taxes on this.” That's a -- that's the typical charge in a -- in a tax evasion case. There's no -- there's no challenge. If they --
Felix Frankfurter: If everything in that gets to elect the question of query is contained in the charge given by the Court, he doesn't have to give the same thing and the same words or different words asked by the defense.
Philip Elman: Well, I -- I really believe that if that charge had been given, the jury would have been utterly confused. The jury wouldn't know -- wouldn't know what to do or a -- what -- on what basis they should bring in a verdict of guilty, 145 (b) or verdict of guilty 3616 (a), because as everyone agrees, if -- if Mr. Berra did everything that the indictment said he did, he's guilty under both statutes and if -- and if the Government did not sustain its burden of proof as to any element of the offense charged, he's not guilty under the false statute so that there was no rational basis on which the jury could acquit as to the offense charged and convict as to 3616 (a). There was no -- there was nothing in the evidence which would have permitted that kind of -- of a verdict and -- and we -- we have addressed ourselves on the brief, primarily to the proposition that the requested instruction would have imposed upon the jury. It was not within its proper concern. It was then misleading. If afforded, no basis or standards upon which the jury could return a verdict, and since the question arose this afternoon as to the legality of -- of the sentence, we think that in effect is an argument that 145 (b) can -- did not authorize the trial court to impose the sentence which he did.
Felix Frankfurter: Now let's --
Philip Elman: Now --
Felix Frankfurter: -- talk about that. Assume that argument, prior to 2255, the claim that a fact was -- it was accepted would -- would have to be -- it was raised -- raised above by habeas corpus, is that right?
Philip Elman: I believe so, yes.
Felix Frankfurter: And it wasn't raised for both -- it couldn't be raised prematurely i.e., it couldn't be raised until the proper sentence, the legal sentence has been served, is that right?
Philip Elman: I think so. (Voice Overlap) I -- I speak hesitantly because –-
Felix Frankfurter: Pardon?
Philip Elman: I speak hesitantly because I haven't researched upon it lately.
Felix Frankfurter: (Voice Overlap) out of conviction, but am I right though that assuming that since 2255, that is no longer a choice, that you could go back if that's removed before the sentencing forth or resentencing --
Philip Elman: Well, I believe --
Felix Frankfurter: (Voice Overlap) Pardon?
Philip Elman: I believe under Rule 25 of the Federal Rules of Criminal Procedure. I think it's Rule 25 after the appeal, the judgement has affirmed, the defendant on remand of the case, the District Court can move for a reduction or modification of sentence on any grounds. Thank you very much.