Berra v. United States, 351 U.S. 131 (1956). · Go Syfert
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Berra v. United States, 351 U.S. 131 (1956). Cases Citing This Book View Copy Cite
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cited 6× by 1 distinct case, last quoted 1988 · …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 ✓
1,073 citation events (64 in the last 25 years) across 82 distinct courts.
Strongest positive: United States v. Wayne T. Schmuck (ca7, 1988-01-21) · Strongest negative: Albert Lloyd v. United States (cadc, 1965-06-07)
Treatment trajectory · 1956 → 2026 · click a year to view as-of
1956 1991 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited "but see" Albert Lloyd v. United States (3×)
D.C. Cir. · 1965 · signal: but see · confidence high
But see Berra v. United States, 351 U.S. 131, 135 , 76 S.Ct. 685, 688 , 100 L.Ed. 1013 (1956) (dissenting opinion of Black, J.) 6 E.g., State v. Cory, 204 Or. 235 , 282 P.2d 1054, 1056 (1955).
examined Cited as authority (quoted) United States v. Wayne T. Schmuck (6×)
7th Cir. · 1988 · signal: see also · quote attribution · 6 verbatim quotes · confidence low
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
discussed Cited as authority (rule) David Alan Jenkins v. Commonwealth of Kentucky
Ky. · 2016 · confidence medium
A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense. 380 U.S. at 349 -50 (quoting Berra v. United States, 351 U.S. 131, 134 (1956), other citations omitted).
discussed Cited as authority (rule) Washington v. State
Nev. · 2001 · confidence medium
The United States Supreme Court addressed this issue in Berm v. United States and concluded that if two statutes cover identical conduct and differ only in penalty, a lesser included offense instruction is not permitted because it invites the jury to pick sentences, which is a duty traditionally left to the judge. 351 U.S. 131, 134-35 (1956), superseded by statute on other grounds as stated in Sansone v. United States, 380 U.S. 343 , 350 n.6 (1965).
discussed Cited as authority (rule) United States v. Wells (2×)
C.A.A.F. · 1999 · confidence medium
See, e.g., Sansone v. United States, 380 U.S. 343, 349 , [ 85 S.Ct. 1004 , 13 L.Ed.2d 882 ] (1965); Berra v. United States, 351 U.S. 131, 134, [ 76 S.Ct. 685 , 100 L.Ed. 1013 ] (1956); Stevenson v. United States, 162 U.S. 313 , [ 16 S.Ct. 839 , 40 L.Ed. 980 ] (1896).
discussed Cited as authority (rule) United States v. David Bernard Abeyta
10th Cir. · 1994 · confidence medium
See, e.g., Sansone v. United States, 380 U.S. 343, 349 [ 85 S.Ct. 1004, 1009 , 13 L.Ed.2d 882 ] (1965); Berra v. United States, 351 U.S. 131, 134 [ 76 S.Ct. 685, 688 , 100 L.Ed. 1013 ] (1956); Stevenson v. United States, 162 U.S. 313 [ 16 S.Ct. 839 , 40 L.Ed. 980 ] (1896).
discussed Cited as authority (rule) United States v. John Charles Walsh
9th Cir. · 1993 · confidence medium
"In a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifies it, ... [is] entitled to an instruction which would permit a finding of guilt of the lesser offense." Berra v. United States, 351 U.S. 131, 134 (1956).
discussed Cited as authority (rule) United States v. Rhoda Jewell Surveyor
10th Cir. · 1993 · confidence medium
Thus, the trial court's determination will not be disturbed on appeal in the absence of an abuse of discretion."). 7 " 'In a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justif[ies] it, [is] entitled to an instruction which would permit a finding of guilt of the lesser offense.' " United States v. Dennison, 937 F.2d 559, 564 (10th Cir.1991) (alterations in original) (quoting Berra v. United States, 351 U.S. 131, 134 (1956)), cert. denied, --- U.S. ----, 112 S.Ct. 886 (1992).
discussed Cited as authority (rule) Warren v. State (2×)
Wyo. · 1992 · confidence medium
See, e.g., Sansone v. United States, 380 U.S. 343, 349 [ 85 S.Ct. 1004, 1009 , 13 L.Ed.2d 882 ] (1965); Berra v. United States, 351 U.S. 131, 134 [ 76 S.Ct. 685, 687 , 100 L.Ed. 1013 ] (1956); Stevenson v. United States, 162 U.S. 313 [ 16 S.Ct. 839 , 40 L.Ed. 980 ] (1896).
discussed Cited as authority (rule) State v. McDonald
Ohio · 1987 · confidence medium
See, also, Cleveland v. Huff (1984), 14 Ohio App. 3d 207 , 14 OBR 235, 470 N.E. 2d 934 ; Berra v. United States (1956), 351 U.S. 131, 137-140 (Black, J., dissenting); People v. Marcy (Colo. 1981), 628 P. 2d 69 ; Spillers v. State (1968), 84 Nev. 23 , 436 P. 2d 18 ; State v. Pirkey, supra. But, cf. United States v. Batchelder (1979), 442 U.S. 114 ; State v. Miles (1983), 8 Ohio App. 3d 410 , 8 OBR 533, 457 N.E. 2d 944 .
discussed Cited as authority (rule) United States v. James R. Rizik
6th Cir. · 1985 · confidence medium
Berra v. United States, 351 U.S. 131, 134 (1956); Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir. 1983); United States v. LoRusso, 695 F.2d 45 , 52 n.3 (2d Cir. 1982), cert. denied, 460 U.S. 1070 (1983); United States v. Iron Shell, 633 F.2d 77, 88 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981); United States v. Burns, 624 F.2d 95, 103 (10th Cir.), cert. denied, 449 U.S. 954 (1980); United States v. Lamartina, 584 F.2d 764, 766 (6th Cir. 1978), cert. denied, 440 U.S. 928 (1979).
discussed Cited as authority (rule) United States v. Larry Burdette Johnson
9th Cir. · 1980 · confidence medium
In fact, not one of the five most relevant Supreme Court opinions since 1895 was directly concerned with the issue of identification of the lesser included offense. 14 Four of the five cases dealt with the question of whether there existed any disputed factual issue which would permit the jury rationally to convict of the lesser but acquit of the greater offense, Sansone, 380 U.S. at 354-55 , 85 S.Ct. at 1011-1012 (no disputed factual issue existed); Berra, 351 U.S. at 134-35 , 76 S.Ct. at 687-688 (no disputed factual issue existed); Stevenson, 162 U.S. at 322-23 , 16 S.Ct. at 842 (disputed fa…
discussed Cited as authority (rule) State v. Karpinski (2×)
Wis. · 1979 · confidence medium
The practice is so suspect that it must be said that as a matter of law it violates the due process and equal protection rights of citizens.” 11 *606 Support for Karpinski’s contention is found in Justice Black’s dissent in Berra v. United States, 351 U.S. 131, 135 (1956): “So far as I know, this Court has never approved the argument the Government makes here. . . . [That] argument rests on the stark premise that Congress has left to the district attorney or the Attorney General the power to say whether the judge and jury must punish identical conduct as a felony or as a misdemeanor.
cited Cited as authority (rule) Bell v. State
Alaska · 1979 · confidence medium
Id. at 135 , 76 S.Ct. at 688 , 100 L.Ed. at 1017 (footnote omitted).
examined Cited as authority (rule) United States v. Milton Dean Batchelder (8×) also: Cited "see"
7th Cir. · 1978 · confidence medium
He merely concluded, "Substitution of the prosecutor's caprice for the adjudicatory process is an action I am not willing to attribute to Congress in the absence of clear command." 351 U.S. at 140 , 76 S.Ct. at 691 (Black, J., with Douglas, J., dissenting). 55 A dissenting opinion, even by a respected constitutional scholar such as the late Justice Black, is weak authority on which to hold a statutory scheme to be of "questionable constitutionality." That the Court did not reach the issue addressed in the dissent leads unavoidably to the inference that the other justices saw no significant con…
discussed Cited as authority (rule) Christie v. State (2×)
Alaska · 1978 · confidence medium
See Sansonne v. United States, 380 U.S. 343, 349-50, 85 S.Ct. 1004 , 13 L.Ed.2d 882, 887-88 (1965); Berra v. United States, 351 U.S. 131, 134 , 76 S.Ct. 685 , 100 L.Ed. 1013, 1017 (1956); Waker v. United States, 344 F.2d 795, 797 (1st Cir. 1965).
discussed Cited as authority (rule) People v. Anaya (2×)
Colo. · 1977 · confidence medium
In Berra v. United States, 351 U.S. 131, 138-40 , 76 S.Ct. 685, 690-91 , 100 L.Ed. 1013, 1020-21 (1956), Mr. Justice Black (in a dissent with which Mr. Justice Douglas concurred) made these statements which apply equally in this situation: “I think we should construe these sections so as not to ,jiace control over the liberty of citizens in the unreviewable discretion of one individual — a result which seems to me to be wholly incompatible with our system of justice. . . .
examined Cited as authority (rule) Monroe Brown v. Robert Parratt, Warden, Nebraska Penal and Correctional Complex (4×)
8th Cir. · 1977 · confidence medium
This commentary is consistent with the dissent in Berra v. United States, 351 U.S. 131, 138, 140 , 76 S.Ct. 685, 690, 691 , 100 L.Ed. 1013 (1956) (Black and Douglas, JJ., dissenting).
cited Cited as authority (rule) United States v. Brozyna
W.D.N.Y. · 1977 · confidence medium
Berra v. United States, 351 U.S. 131, 134 [ 76 S.Ct. 685 , 100 L.Ed. 1013 ] (1956).
discussed Cited as authority (rule) Pueblo v. Hernández Olmo
prsupreme · 1976 · confidence medium
Se ha resuelto por el Supremo de. los Estados Unidos que “En un caso donde algunos de los elementos del delito por el cual se acusa también constituyen un delito menor, el acusado, si la evidencia lo justifica, tendrá sin duda derecho a una instrucción que permita un veredicto por el delito menor.” Berra v. United States, 351 U.S. 131, 134 (1956); 100 L.Ed. 1013 ; Pueblo v. del Valle, 91 D.P.R. 174 (1964); Pueblo v. Medina Ocasio, 98 D.P.R. 302 (1970); Pueblo v. Figueroa Figueroa, 100 D.P.R. 213 (1971).
discussed Cited as authority (rule) Martin v. Parratt
D. Neb. · 1976 · confidence medium
Berra v. United States, 351 U.S. 131, 139 , 76 S.Ct. 685, 690 , 100 L.Ed. 1013, 1020 (Black J., dissenting): A judge and jury act under procedural rules carefully prescribed to protect the liberty of the individual.
discussed Cited as authority (rule) United States v. Bishop
SCOTUS · 1973 · confidence medium
See n. 8, infra. Cf. United States v. Lachmann, 469 F. 2d 1043 (CA1 1972) (§§7201 and 7203). 3 United States v. Haseltine, 419 F. 2d 579, 581 (1970) (§§ 7201 and 7203); United States v. Fahey , n. 2, supra; Eustis v. United States, 409 F. 2d 228 (1969) (§ 7203); Edwards v. United States, 375 F. 2d 862 (1967) (§§7201, 7203, and 7206 (2)); Martin v. United States, n. 2, supra; Abdul v. United States, n. 2, supra. 4 One possible result of this distinction, of course, is that the Government’s burden in a misdemeanor case could be less than in a felony case. 5 The applicability of § 3616 …
examined Cited as authority (rule) Keeble v. United States (4×) also: Cited "see"
SCOTUS · 1973 · confidence medium
See, e. g., Sansone v. United States, 380 U. S. 343, 349 (1965); Berra v. United States, 351 U. S. 131, 134 (1956); Stevenson v. United States, 162 U. S. 313 (1896). [7] In defending the trial court's refusal to offer the requested instruction, the Government does not dispute this general proposition, nor does it argue that a lesser offense instruction was incompatible with the evidence presented at trial.
discussed Cited as authority (rule) Bland v. United States
SCOTUS · 1973 · confidence medium
Justice Black and I said in dissent in Berra v. United States, 351 U.S. 131, 135, 140 , 76 S.Ct. 685, 691 , 100 L.Ed. 1013 : 7 '. . . it is true that under our system Congress may vest the judge and jury with broad power to say how much punishment shall be imposed for a particular offense.
discussed Cited as authority (rule) People v. Thomas
Mich. Ct. App. · 1972 · confidence medium
As appears from the majority and dissenting opinions in Sparf v United States, 156 US 51 ; 15 S Ct 273 ; 39 L Ed 343 (1895), and Berra v United States, 351 US 131 ; 76 S Ct 685 ; 100 L Ed 1013 *780 (1956), at stake is nothing less than such fundamental matters as the prosecutor’s charging discretion, the court’s power to control the jury, and the jury’s power to acquit the guilty in the face of the evidence.
discussed Cited as authority (rule) Harry William Theriault v. United States
5th Cir. · 1970 · confidence medium
See Sparf and Hansen v. United States, 1895, 156 U.S. 51, 63 , 15 S.Ct. 273 , 39 L.Ed. 343 ; Berra v. United States, 8 Cir. 1956, 351 U.S. 131, 133, 134 , 76 S.Ct. 685 , 100 L.Ed. 1013 ; 2 Wright, Federal Practice and Procedure § 515.
cited Cited as authority (rule) Government of the Virgin Islands v. Ernesto Carmona
3rd Cir. · 1970 · confidence medium
Sansone v. United States, 380 U.S. 343, 349 (1965); Berra v. United States, 351 U.S. 131, 134 (1956); Stevenson v. United States, 162 U.S. 313 (1896).
discussed Cited as authority (rule) The Prudential Insurance Company of America v. National Labor Relations Board, and Insurance Workers International Union, Afl-Cio, Intervenor (2×)
2d Cir. · 1969 · confidence medium
Even in the context of an organizing campaign, it is not an unfair labor practice for an employer to force union organizers to locate the employees and communicate with them without access to the employer's property or other help from him, NLRB v. Babcock & Wilcox Co., 351 U.S. 105 , 76 S.Ct. 679 (1956), except when "the location of the plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them," 351 U.S. at 113, 76 S.Ct. at 685.
discussed Cited as authority (rule) United States v. Coppola
D. Conn. · 1969 · confidence medium
Defendant asserts, “It is impossible for a taxpayer to commit a § 7201 felony without necessarily committing either or both of the misdemeanors outlawed by §§ 7203 and 7207.” Defendant finds support for his conclusion that conduct violative of both the felony and misdemeanor sections cannot be punished as a felony in the dissenting opinion of Mr. Justice Black (joined in by Mr. Justice Douglas) in Berra v. United States, 351 U.S. 131, 135 (1956).
discussed Cited as authority (rule) Mahle v. State
Alaska · 1964 · confidence medium
Berra v. United States, 351 U.S. 131, 134 , 76 S.Ot. 685, 687, 100 L.Ed. 1013, 1017-1018 (1956); Lee v. United States, 238 F.2d 341, 346 (9th Cir.1956); United States v. MecCue, 160 F.Supp. 595, 602 (D.C.Conn.1958).
discussed Cited as authority (rule) Barenblatt v. United States (2×)
SCOTUS · 1959 · confidence medium
Rec., Jan. 7, 1959, p. 13. [7] See, e. g., Panama Refining Co. v. Ryan, 293 U. S. 388 ; Schechter Poultry Corp. v. United States, 295 U. S. 495 ; id., at 551 (concurring opinion); Berra v. United States, 351 U. S. 131, 135 (dissenting opinion); Watkins v. United States, 354 U. S. 178, 203-205 ; Sweezy v. New Hampshire, 354 U. S. 234 .
discussed Cited "see" United States v. Joe Ross
5th Cir. · 2020 · signal: see · confidence high
See id. at 124 (citing Berra v. United States, 351 U.S. 131 , 139–40 (1956) (Black, J., dissenting)). 7 Case: 18-20496 Document: 00515266645 Page: 8 Date Filed: 01/10/2020 No. 18-20496 As stated, and unlike the statutes at issue in Batchelder, the receipt and possession offenses in § 2252A have different elements.
examined Cited "see" Alvin Bobb v. Attorney General of the United States (6×)
3rd Cir. · 2006 · signal: see · confidence high
See Berra v. United States, 351 U.S. 131 , 76 S.Ct. 685 , 100 L.Ed. 1013 (1956) (upholding the defendant’s felony conviction when misdemeanor tax evasion statute would have proscribed identical conduct and imposed a lesser penalty), superseded by statute on other grounds as stated in Sansone v. United States, 380 U.S. 343 , 350 n. 6, 85 S.Ct. 1004 , 13 L.Ed.2d 882 (1965).
discussed Cited "see" Bobb v. Atty Gen USA
3rd Cir. · 2006 · signal: see · confidence high
See Berra v. United States, 351 U.S. 131 (1956) (upholding the 9 The defendant, a convicted felon, was convicted of receiving a firearm that had traveled in interstate commerce, in violation of 18 U.S.C. § 922 (h), which carried a maximum term of imprisonment of five years.
discussed Cited "see" United States v. Elizabeth Silvia
4th Cir. · 1989 · signal: see · confidence high
See Berra v. United States, 351 U.S. 131, 134 (1956); United States v. Iron Shell, 633 F.2d 77, 88 (8th Cir.1980); Kelly v. United States, 370 F.2d 227, 228 (D.C.Cir.1966). 20 Voluntary manslaughter is also a lesser included offense.
discussed Cited "see" United States v. Chagra (2×)
W.D. Tex. · 1986 · signal: see · confidence high
See Berra v. United States, 351 U.S. 181, 134 , 76 S.Ct. 685, 688 , 100 L.Ed. 1013 (1956); 3 C.
examined Cited "see" Bankr. L. Rep. P 70,011 United States of America v. Robert D. Alexander, Sr. (3×)
7th Cir. · 1984 · signal: see · confidence high
See Berra v. United States, 221 F.2d 590 (8th Cir.1955), affirmed on other grounds, 351 U.S. 131 , 76 S.Ct. 685 , 100 L.Ed. 1013 (1956).
examined Cited "see" United States v. Melvin Bay Guyon (6×)
6th Cir. · 1983 · signal: see · confidence high
See Berra v. United States, 351 U.S. 131 , 134 and n. 6, 76 S.Ct. 685 , 688 and n. 6, 100 L.Ed. 1013 (1956).
discussed Cited "see" United States v. Waldron
usnmcmilrev · 1980 · signal: see · confidence high
If there is no factual dispute concerning an element which distinguishes the offenses, to instruct on both offenses “would only invite the jury to pick between the [greater and lesser] so as to determine the punishment to be imposed, a duty Congress has traditionally left to the judge.” Sansone v. United States, 380 U.S. at 350 n. 6, 85 S.Ct. at 1009 ; see Berra v. United States, 351 U.S. [131] at 135, 76 S.Ct. 685 [at 688]; Sparf v. United States, 156 U.S. [51] at 63-64, 15 S.Ct. 273 [at 277].
examined Cited "see" United States v. Kenneth R. Chapman (6×)
10th Cir. · 1980 · signal: see · confidence high
See Berra v. United States, 351 U.S. 131 , 134 and n. 6, 76 S.Ct. 685, 688 , 100 L.Ed. 1013 (1956) 7 See also, e. g., Government of Virgin Islands v. Carmona, 422 F.2d 95, 100 (CA3 1970); United States v. Comer, 137 U.S.App.D.C. 214, 218 , 421 F.2d 1149, 1153 (1970) 2 Although not presented as an issue on appeal, a similar result would have followed herein in view of New Mexico's statutes 1 It is true that some opinions refer to evaluating the circumstances of the average sober man.
examined Cited "see" United States v. John Henry Brown (3×)
8th Cir. · 1977 · signal: see · confidence high
See Berra v. United States, 351 U.S. 131 , 76 S.Ct. 685 , 100 L.Ed. 1013 (1956) (Black, J., dissenting); K.
examined Cited "see" United States v. Eddie W. Jackson (3×)
D.C. Cir. · 1975 · signal: see · confidence high
See Berra v. United States, 221 F.2d 590, 596-97 (8th Cir. 1955), aff’d, 351 U.S. 131 , 76 S.Ct. 685 , 100 L.Ed. 1013 (1956); Walker v. United States, supra note 16, 93 F.2d at 795 ; Cotton v. United States, 409 F.2d 1049, 1054 (10th Cir. 1969), cert. denied, 396 U.S. 1016 , 90 S.Ct. 577 , 24 L.Ed.2d 507 (1970). 18 .
discussed Cited "see" People v. Eboli
NY · 1974 · signal: see · confidence high
(E.g., State v. Pirkey, 203 Ore. 697 ; State v. Twitchell, 8 Utah 2d 314 ; Matter of Olsen v. Delmore, 48 Wn. 2d 545 ; see Berra v. United States, 351 U. S. 131 [dissent per Justice Black] ; Hutcherson v. United States, 345 F. 2d 964 [dissent per Bazelon, J.], cert. den. 382 U. S. 894 .) However, the majority of courts which have addressed the issue of the legality of prosecutorial discretion in choosing one of several applicable statutes under which to proceed, have upheld the practice.
examined Cited "see" Palmore v. United States (3×)
D.C. · 1972 · signal: see · confidence high
See Berra v. United States, 351 U.S. 131, 139 , 76 S.Ct. 685 , 100 L.Ed. 1013 (1956) (Black, J., dissenting); Olsen v. Delmore, 48 Wash.2d 545 , 295 P.2d 324 (1956); State v. Pirkey, 203 Or. 697 , 281 P.2d 698 (1955). 28 We disagree.
examined Cited "see" United States v. Charles R. Harary (4×)
2d Cir. · 1972 · signal: see · confidence high
If there is no factual dispute concerning an element which distinguishes the offenses, to instruct on both offenses “would only invite the jury to pick between the [greater and lesser] so as to determine the punishment to be imposed, a duty Congress has traditionally left to the judge.” Sansone v. United States, 380 U.S. at 350 n. 6, 85 S.Ct. at 1009 ; see Berra v. United States, 351 U.S. at 135 , 76 S.Ct. 685 ; Sparf v. United States, 156 U.S. at 63-64 , 15 S.Ct. 273 .
examined Cited "see" Sidney A. Mauney v. United States (3×)
6th Cir. · 1972 · signal: see · confidence high
See Berra v. United States, 351 U.S. 131, 134-135 , 76 S.Ct. 685 , 100 L.Ed. 1013 (1956).
discussed Cited "see" State v. Melvin (2×)
Wis. · 1970 · signal: see · confidence high
See Berra v. United States (1956), 351 U. S. 131 , 76 Sup. Ct. 685, 100 L.
examined Cited "see" Lundgren v. Turner (3×)
D. Utah · 1969 · signal: see · confidence high
See Berra v. United States, 351 U.S. 131, 138 , 76 S.Ct. 685 , 100 L.Ed. 1013 (1956) (dissent of Justice Black); State v. Pirkey, 203 Or. 697 , 281 P.2d 698 (1955); Olsen v. Delmore, 48 Wash.2d 545 , 295 P.2d 324 (1956).
examined Cited "see" United States v. Coppola (3×)
D. Conn. · 1969 · signal: see · confidence high
This argument proceeds on the assumption that since the facts and evidence relied upon to establish a violation of § 7201 would be identical with those establishing a violation of § 7207, instructions permitting a finding of guilt of the lesser offense would be precluded under the teachings of Sansone v. United States, 380 U.S. 343 , 85 S.Ct. 1004 , 13 L.Ed.2d 882 (1965); see Berra v. United States, 351 U.S. 131 , 76 S.Ct. 685 , 100 L.Ed. 1013 (1956); Achilli v. United States, 353 U.S. 373 , 77 S.Ct. 995 , 1 L.Ed.2d 918 (1957).
discussed Cited "see" United States v. Stanley Joseph Markis (2×)
2d Cir. · 1965 · signal: see · confidence high
See Berra v. United States, 351 U.S. 181 , 76 S.Ct. 685 , 100 L.Ed. 1013 (1956); Sansone v. United States, 380 U.S. 343 , 85 S.Ct. 1004 , 13 L.Ed.2d 882 (1965).
Retrieving the full opinion text from the archive…
Louis Berra
v.
United States
60.
Supreme Court of the United States.
Apr 30, 1956.
351 U.S. 131
Stanley M. Rosenblum argued the cause for petitioner. With him on the brief were Mark M. Hennelly and Sidney M. Glazer., Philip Elman argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Acting Assistant Attorney General Rice, Joseph M. Howard and Dickinson Thatcher.
Harlan, Black, Douglas.
Cited by 315 opinions  |  Published
1 passages pin-cited by 1 case
Pinpoint authority: bottom 88%
Citer courts: Seventh Circuit (6)
Reporter's Syllabus — editorial summary, not part of the Court's opinion

Mr.

Stanley M. Rosenblum, St. Louis, Mo., for petitioner.

Mr. Philip Elman, Washington, D.C., for respondent.

Mr. Justice HARLAN delivered the opinion of the Court.

Lead Opinion

[*132] 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[*133] 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[*134] 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[*135] § 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[*133] 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” stat[*135] utes 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.

Dissent

Mr. Justice Black, with whom Mr. Justice Douglas joins,

dissenting.

The petitioner here was convicted on three counts under an indictment charging that he “did willfully and knowingly attempt to evade and defeat a large part of the income tax due and owing by him and his wife . . . by filing ... a false and fraudulent joint income tax[*136] return .... In violation of Section 145 (b), Title 26, United States Code.” Section 145 (b) provides that:

“any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter .. . 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.” (Emphasis added.)[1]

The offense charged in the indictment, filing a fraudulent return, could be held to be proscribed by § 145 (b) because of the phrase “in any manner.” But certainly it falls squarely within the specific language of 26 U. S. C. § 3616 (a), which provides that any person who

“Delivers or discloses to the collector or deputy any false or fraudulent list, return, account, or statement, with intent to defeat or evade the . . . assessment intended to be made . . . shall be fined not exceeding $1,000, or be imprisoned not exceeding one year, or both, at the discretion of the court, with costs of prosecution.” (Emphasis added.)[2]

At an appropriate time the petitioner asked the trial judge to charge the jury that if the allegations of the indictment had been proven they should find the petitioner guilty of a misdemeanor under § 3616 (a). Although § 3616 (a) unambiguously makes the conduct charged a misdemeanor punishable by no more than one year in prison, the trial judge apparently felt that he was compelled to treat the offense as a felony because of the statement in the indictment that the conduct charged[*137] was “In violation of Section 145 (b) . . . .”[3] The judge not only refused the requested instruction, but after the jury returned a verdict of guilty, he sentenced petitioner to serve four years in prison on each of the three counts, the sentences to run concurrently.

Regardless of whether it was error to refuse the requested instruction, the record raises a serious question as to whether the four-year sentence on each count was lawfully imposed. The Court’s opinion takes the position that no proper challenges to the sentence under the felony statute were raised below and hence that “No such questions are presented here.” [4] In my judgment the requested instruction was adequate to call the trial judge’s attention to petitioner’s contention that the offense charged was not a felony but a misdemeanor. But even if the question should have been raised again when the judge announced the sentence, “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Fed. Rules Crim. Proc., 52 (b). See also Wiborg v. United States, 163 U. S. 632, 658. Since I think petitioner is right in saying the offense charged was only a misde[*138] meanor, I think we should correct the plain error of the trial judge in sentencing petitioner under the felony statute.

The Government admits here and the Court assumes that filing a false and fraudulent income tax return is both a misdemeanor under § 3616 (a) and a felony under § 145 (b). The Government argues that the action of the trial judge must be upheld because “the Government may choose to invoke either applicable law,” and “the prosecution may be for a felony even though the Government could have elected to prosecute for a misdemeanor.” Election by the Government of course means election by a prosecuting attorney or the Attorney General.[5] I object to any such interpretation of §§ 145 and 3616. I think we should construe these sections so as not to place control over the liberty of citizens in the unreviewable discretion of one individual — a result which seems to me to be wholly incompatible with our system of justicé. Since Congress has specifically made the conduct charged in the indictment a misdemeanor, I would not permit prosecution for a felony under the broad language of § 145 (b). Criminal statutes, which forfeit life, liberty or property, should be construed narrowly, not broadly.

So far as I know, this Court has never approved the argument the Government makes here. It certainly did not do so in United States v. Beacon Brass Co., 344 U. S.[*139] 43, upon which the Government seems to rely. In that case the Court said:

“We have before us two statutes, each of which proscribes conduct not covered by the other, but which overlap in a narrow area illustrated by the instant case. At least where different proof is required for each offense, a single act or transaction may violate more than one criminal statute. . . 344 U. S., at 45.

Here, however, under the Court’s opinion and the Government’s argument, two statutes proscribe identical conduct and no “different proof” was required to convict petitioner of the felony than would have been required to convict him of the misdemeanor. The Government’s whole argument rests on the stark premise that Congress has left to the district attorney or the Attorney General the power to say whether the judge and jury must punish identical conduct as a felony or as a misdemeanor.

A basic principle of our criminal law is that the Government only prosecutes people for crimes under statutes passed by Congress which fairly and clearly define the conduct made criminal and the punishment which can be administered.[6] This basic principle is flouted if either of these statutes can be selected as the controlling law at the whim of the prosecuting attorney or the Attorney General. “For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.” Yick Wo v. Hopkins, 118 U. S. 356, 370.

[*140] A congressional delegation of such vast power to the prosecuting department would raise serious constitutional questions. Of course it is true that under our system Congress may vest the judge and jury with broad power to say how much punishment shall be imposed for a particular offense. But it is quite different to vest such powers in a prosecuting attorney. A judge and jury act under procedural rules carefully prescribed to protect the liberty of the individual. Their judgments and verdicts are reached after a public trial in which a defendant has the right to be represented by an attorney. No such protections are thrown around decisions by a prosecuting attorney. Substitution of the prosecutor’s caprice for the adjudicatory process is an action I am not willing to attribute to Congress in the absence of clear command. Our system of justice rests on the conception of impersonality in the criminal law. This great protection to freedom is lost if the Government is right in its contention here. See dissenting opinion in Rosenberg v. United States, 346 U. S. 273, 306.

The Government’s contention here also challenges our concept that all people must be treated alike under the law. This principle means that no different or higher punishment should be imposed upon one than upon another if the offense and the circumstances are the same. It is true that there may be differences due to different appraisals given the circumstances of different cases by different judges and juries. But in these cases the discretion in regard to conviction and punishment for crime is exercised by. the judge and jury in their constitutional capacities in the administration of justice.

I would reverse this case or at least remand for resentencing under the misdemeanor statute, § 3616 (a).

1

Internal Revenue Code of 1939, 53 Stat. 63. Cf. § 7201, Internal Revenue Code of 1954, 68A Stat. 851.

2

Internal Revenue Code of 1939, 53 Stat. 440. Cf. §§7206 (1), 7207, Internal Revenue Code of 1954.

3

But see Williams v. United States, 168 U. S. 382, 389; United States v. Hutcheson, 312 U. S. 219, 229; Fed. Rules Grim. Proc., 7 (c), which provides in part that: “The indictment . . . shall state for each count the official or customary citation of the statute . . . which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment ... or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.” Cf. Cole v. Arkansas, 333 U. S. 196.

4

Apparently the Court means by this to leave open to petitioner the opportunity to challenge his sentence by a motion to correct it under 28 TJ. S. C. § 2255. Of course I agree that a motion under that section would be appropriate, but I think petitioner is entitled to have it settled now.

5

This would always follow where an information is used. And where there is an indictment by grand jury of course the indictment is drawn by the prosecuting attorney, since grand juries normally are not familiar with the applicable statutes. Thus where a prosecuting officer seeks an indictment under a statute making an attempt to evade taxes in any manner a felony, it would be a rare grand juror indeed who would be sufficiently familiar with the Internal Revenue Code to suggest that it might be better to bring the indictment under § 3616 (a).

6

See, e. g., International Harvester Co. v. Kentucky, 234 U. S. 216; Connally v. General Construction Co., 269 U. S. 385, 391-392.