Appeal from a judgment of the District Court for the Southern District of New York (Abraham D. Sofaer, Judge) convicting defendant, after a jury trial, of 21 counts of paying unlawful gratuities to an agent of the Immigration and Naturalization Service, in violation of 18 U.S.C. § 201(f) (1982). Affirmed
Before: NEWMAN and PRATT, Circuit Judges, and KELLEHER,*fn* District Judge.
JON O. NEWMAN, Circuit Judge:
Frederick Roland appeals from a judgment of the District Court for the Southern District of New York (Abraham D. Sofaer, Judge) convicting him, after a jury trial, of 21 counts of paying unlawful gratuities to an agent of the Immigration and Naturalization Service, in violation of 18 U.S.C. § 201(f) (1982). The indictment also contained counts charging bribery, in violation of 18 U.S.C. § 201(b) (1982); the jury was unable to agree on verdicts on the bribery counts. The appeal primarily concerns the trial court's supplemental instruction on the jury's consideration of lesser included offenses. For reasons that follow, we affirm.
Since the sufficiency of the evidence is not challenged on appeal, the facts may be summarily stated. The evidence overwhelmingly established that Roland, an attorney at the time of the offenses, eagerly participated in a scheme to pay money to I.N.S. agents who were cooperating with the Government. Over the course of 10 months, Roland paid approximately $43,000 to the agents to obtain alien registration documents for his clients. Though obviously sensitive to the risk of apprehension ("none of us is wired right?") and expressing concern about "that Abscam case," Roland was tape-recorded on 65 occasions discussing and making his illegal payments and eagerly planning for more of them. Not surprisingly, the jury rejected his preposterous defense that the payments were part of what he thought was a lawful fee-sharing arrangement. Among the numerous items of evidence refuting this claim was an episode at which Roland showed the agents a newspaper article concerning a lawyer who was paying bribes to I.N.S. agents and arranging fictitious marriages in order to secure "green cards" for his clients; as Roland told the agents whom he was paying, "It's exactly what we're doing." He also told the agents to deny receiving any payments from him if anyone ever asked any questions.
The lesser included offense issue arises in the aftermath of this Court's decision in United States v. Tsanas, 572 F.2d 340 (2d Cir.), cert. denied, 435 U.S. 995, 56 L. Ed. 2d 83, 98 S. Ct. 1645 (1978). In Tsanas, Judge Friendly considered the two alternative ways of instructing a jury concerning its consideration of a lesser included offense. Under both approaches the jury is given the traditional instruction that they should consider first the greater offense and that a verdict of guilty precludes their consideration of the lesser included offense. See Fuller v. United States, 132 U.S. App. D.C. 264, 407 F.2d 1199, 1227 (D.C. Cir. 1968) (in banc), cert. denied, 393 U.S. 1120, 22 L. Ed. 2d 125, 89 S. Ct. 999 (1969). The divergence arises when the instructions inform the jurors how they should proceed in the event that they reach a point in their deliberations where they have not unanimously voted to return a verdict of guilty on the greater offense. Under the first approach the jurors are told to proceed to consideration of the lesser included offense only if they have unanimously voted to return a verdict of not guilty on the greater offense. Under the second approach, the jurors are also told to proceed to consider the lesser included offense if they are unable to agree on a verdict concerning the greater offense. As Judge Friendly pointed out, both the "acquittal first" and the "hung jury" approaches offer advantages and disadvantages to both the prosecution and the defense. Id. at 345-46. In light of the array of considerations, the conclusion reached in Tsanas was that the trial judge could follow either approach if the defendant expressed no preference, but that the form of instruction preferred by the defendant should be given if he "seasonably" elects. Id. at 346; see also Catches v. United States, 582 F.2d 453, 459 (8th Cir. 1978).
In Roland's case, for each payment to an I.N.S. agent, the indictment charged in separate counts both a bribery offense under section 201(b) and an unlawful gratuity offense under section 201(f). Though the issue concerning the jury charge therefore does not arise under the lesser included offense provision of Rule 31(c) of the Federal Rules of Criminal Procedure, as it did in Tsanas, we see no reason to distinguish Tsanas on that ground. The defendant's choice concerning the jury's consideration of a lesser included offense should not depend upon whether that offense is available for consideration because of Rule 31(c) or because it has been set out in a separate count in the indictment.*fn1 In either event, however, the less serious offense may be treated as a lesser included offense only if both criteria set forth in Sansone v. United States, 380 U.S. 343, 13 L. Ed. 2d 882, 85 S. Ct. 1004 (1965), are met: On the facts of the case the lesser offense must be included within the greater and must not be completely encompassed by the greater, that is, there must be a disputed issue of fact concerning an element required for conviction of the greater offense but not required for conviction of the lesser offense. Id. at 350; United States v. Tsanas, supra, 572, F.2d at 343. It is not entirely clear that the gratuity offense, which requires proof that payment was made "for or because of any official act," is lesser included within the bribery offense, which requires proof that the payment was made "to influence any official act." However as in Tsanas, 572 F.2d at 343-44, the Government has made no objection to treating the gratuity offense as lesser included within the bribery offense, and we therefore proceed to the merits of Roland's claim that he was entitled to have the jury instructed to consider the gratuity offense only if it first reached a verdict of not guilty on the bribery offense.
The claim arises under the following circumstances. Prior to the jury charge, Roland made no request for an instruction concerning the conditions under which the jury should proceed to consider the gratuity offense. In the initial charge, Judge Sofaer instructed the jury that, if it found the defendant guilty of bribery with respect to any alleged payment, it should proceed no further with respect to such payment. He then added, "If you find, however, that the government has not sustained its burden of proof on a given bribery count, . . . you must then consider whether the defendant violated the unlawful gratuity provision of the statute." This language did not in terms tell the jury to proceed to the gratuity count only if it had first unanimously agreed to return a not guilty verdict on the bribery count, but it was surely closer to the "acquittal first" approach than to the "hung jury" approach. Since the defendant had not requested either approach, we cannot be certain that the trial judge was consciously endeavoring to select between the approaches. In any event, as frequently happens, the jury specifically focused on the point that had previously been left obscure. After four days of deliberation the jury sent a note asking, "Do we consider unlawful gratuity charges only if we reach a not guilty verdict on bribery or do we consider unlawful gratuity if we cannot reach an unanimous verdict on a bribery count?" (Emphasis in original).
Judge Sofaer advised counsel that he proposed to tell the jury that it should consider the gratuity charge if it either finds the defendant not guilty of bribery or is unable to agree on a verdict as to bribery. At that point, defense counsel for the first time requested that the jury be told to consider the gratuity offense only if it reached a not guilty verdict on the bribery offense. Significantly, counsel made no claim that Judge Sofaer's proposed response would alter any guidance concerning the proper approach to the lesser included offense that had previously been given in the initial instructions. It appears that counsel for both sides and the District Judge were focusing on the Tsanas issue for the first time. Judge Sofaer rejected defense counsel's request and instructed the jury to consider the gratuity charges if it acquitted or was in disagreement on the bribery charges.
Since Tsanas clearly states that neither instruction is "wrong as a matter of law," 572 F.2d at 346, the issue becomes whether Roland's request for the "acquittal first" approach was timely. We hold that it was not. The advantages and disadvantages that both approaches offer to both sides were discussed in Tsanas from the perspective of litigants who would be assessing, before jury deliberations begin, the various risks of how jurors might react during those deliberations. Once the deliberations have begun, the passage of time affords some basis for estimating the likelihood of a jury deadlock. In this case the jury had reported on the second day of deliberations that it was "in disagreement." If a defendant could make his Tsanas election during deliberations, he would secure the benefits of both approaches. If some of the jurors thought the initial instruction permitted them to consider the lesser charge in the event of disagreement on the greater, the defendant is spared the risk that they might agree to a guilty verdict on the greater just to avoid a mistrial. See United States v. Tsanas, supra, 572 F.2d at 346. If they are later told that they may consider the lesser charge only if they acquit on the greater, the defendant secures an increased chance of avoiding any conviction. Id. That is why Tsanas affords the defendant a choice only if he expresses his preference "seasonably." Though Roland's counsel may have believed that the initial instructions would confine the jurors to the "acquittal first" approach, it is obvious from their question that at least some of the jurors were uncertain which approach they were to follow.
The District Judge's rejection of counsel's requested supplemental instruction was not error in the absence of either a timely request before deliberations for an explicit "acquittal first" instruction or the inclusion in the initial charge of language that unmistakably confined the jury to the "acquittal first" approach. In the circumstances of this case, Roland's request, first made on the fourth day of the deliberations and after some disagreement among the jurors was reported, was untimely.
Roland's remaining claims are less substantial. In the fashion of recent appeals from convictions for crimes that agents afforded opportunities to commit, Roland urges us to declare the agents' conduct to be a denial of due process, having failed to secure from the fury an acquittal on the ground of entrapment. The facts of this case do not even approach what may be those "extreme cases . . . where the government conduct was to outrageous as to violate due process." United States v. Williams, 705 F.2d 603, 6l9 (2d Cir.), cert. denied, 464 U.S. 1007, 104 S. Ct. 524, 78 L. Ed. 2d 708, 104 S. Ct. 525 (1983). The evidence of inducement was minimal, doubtfully enough even to create a jury issue as to the entrapment defense. Unable to point to any conduct by the agents that unfairly pressured him into criminal conduct, Roland contends that due process was denied because the agents did not arrest him after the first illegal payment, but instead continued the investigation for several months during which he eagerly accepted the opportunity to make repeated payments. If anything is outrageous, it is not the agents' conduct but the appellant's argument. Having sought to persuade the jury that the prosecution had failed to prove his predisposition beyond a reasonable doubt, Roland is hardly in a position to complain that the agents took the time to assemble the quantity of evidence that proved his guilt. Prompt and unhesitating agreement to a corrupt proposal is ...