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United States v. Niederberger

argued: January 4, 1978.



Rosenn and Higginbotham, Circuit Judges, and Barlow, District Judge.*fn*

Author: Barlow


BARLOW, District Judge.

Cyril J. Niederberger, an employee of the Internal Revenue Service (I.R.S.), appeals his conviction on six counts of a ten-count indictment. The indictment charged Niederberger with accepting illegal gratuities from Gulf Oil Corporation (Gulf) in the form of five golfing trips paid for by Gulf.*fn1 Each golf trip provided the predicate for two counts in the indictment, the odd-numbered counts alleging violations of 18 U.S.C. § 201(g) (1970)*fn2 and the even-numbered counts alleging violations of 26 U.S.C. § 7214(a)(2) (1970).*fn3

Niederberger seeks reversal on a variety of grounds. The principal arguments, however, are addressed to the trial court's refusal, first, to grant Niederberger's motion for severance; second, to compel the Government to provide use immunity for certain potential defense witnesses; third, to dismiss the indictment on the basis of duplicity; fourth, to dismiss the indictment for its failure to allege facts which constitute a federal offense; and, fifth, to strike the testimony of a prosecution witness who, prior to trial, had destroyed the rough notes upon which he based his testimony. Additionally, Niederberger contends that the evidence presented by the prosecution was insufficient to support a judgment of conviction.

However, following our careful consideration of all the issues raised by the appellant, we must affirm the judgment of the trial court in all respects.

The facts, briefly summarized, are as follows: During the period between 1971 and 1974, Niederberger was employed by the I.R.S. in its Pittsburgh office as a large case manager. This position required Niederberger to supervise a group of revenue agents assigned to audit certain corporate income tax returns filed by Gulf. Among Niederberger's responsibilities were the development and final approval of the audit plan, which is a detailed outline of the specific procedures to be utilized during the course of a particular audit. During the development of an audit plan, Niederberger was empowered to make all final decisions regarding the scope and depth of the areas of corporate taxation which were to be reviewed in the audit.

Further, in his position as the large case manager for Gulf, Niederberger had occasion to supervise the audits of Gulf's tax returns for the years 1960 through 1970 inclusive. Following the completion of a particular year's audit, representatives of Gulf would confer with Niederberger's staff to discuss the tax adjustments which the revenue agents determined were required by the audit. In each instance Gulf agreed to pay the proposed additional assessment without resort to available administrative appellate procedures.

During the same period that Niederberger was serving as the case manager for the Gulf audits, he accepted from Gulf -- and at Gulf's expense -- several golfing junkets at various resorts. More precisely, in January of 1973, Niederberger spent four days at the Doral Country Club in Miami Beach, Florida, in the company of Mr. John F. Fitzgerald who, at that time, was the Manager of Federal Tax Compliance for Gulf. Niederberger's entire bill was transferred to Fitzgerald's account, which was subsequently charged to Fitzgerald's American Express card. This trip provided the basis for Counts III and IV of the indictment.

In August and September of 1973, Niederberger and his wife spent four days at the Seaview Country Club in Absecon, New Jersey, in the company of, among others, Mr. Fred W. Standefer, Gulf's Vice-President of Tax Administration. The Niederbergers' expenses at Seaview were billed to Mr. Arthur V. Harris, who listed his billing address as the Gulf Oil Building, Pittsburgh, Pennsylvania. Counts V and VI of the indictment embody this trip.

In April of 1974, Niederberger spent four days at the Del Monte Lodge in Pebble Beach, California, in the company of both Fitzgerald and Standefer. Again, Fitzgerald charged Niederberger's bill to his American Express card. Counts VII and VIII of the indictment reflect this trip.

Two months later, in June of 1974, Niederberger and his wife were guests of Fitzgerald for five days at the Desert Inn and Country Club in Las Vegas, Nevada. This trip underlies Counts IX and X of the indictment.


Prior to trial and pursuant to Fed. R. Crim. P. 14,*fn4 Niederberger moved unsuccessfully to limit the trial below to those offenses charged in any two counts contained in the indictment which had, as their common denominator, the location of one of the five golfing vacations. He urges on this appeal that the joinder of all ten counts in the indictment substantially prejudiced his right to a fair trial in that the jury was presented with evidence relating to all five golfing trips and could not, therefore, properly separate and distinguish the evidence with respect to each individual count.

Initially, it is settled that a district court's disposition of a Rule 14 severance motion will not be disturbed in the absence of a clear showing of an abuse of discretion. United States v. Somers, 496 F.2d 723, 730 (3d Cir.), cert. denied, 419 U.S. 832, 42 L. Ed. 2d 58, 95 S. Ct. 56 (1974). The burden placed upon the appellant here to demonstrate such abuse is a heavy one. Id.; see United States v. Rosa, 560 F.2d 149, 154 (3d Cir.), cert. denied, 434 U.S. 862, 98 S. Ct. 191, 54 L. Ed. 2d 135 (1977) (severance of defendants).

Moreover, joinder of offenses in one indictment is expressly permitted by Fed. R. Crim. P. 8(a).*fn5 Here the joinder was clearly permissible since the crimes charged were all of the same or similar character. Thus, our inquiry must focus on whether the record below suggests that, by virtue of the joinder, the appellant's right to a fair trial was sufficiently prejudiced so as to warrant the relief provided by Rule 14.

The obvious purpose of Rule 8(a)'s liberal joinder provision is to promote judicial and prosecutorial economy by the avoidance of multiple trials. United States v. McGrath, 558 F.2d 1102, 1106 (2d Cir. 1977), cert. denied, 434 U.S. 1064, 98 S. Ct. 1239, 55 L. Ed. 2d 765 (1978). To accept the appellant's view here would clearly violate the intent of Rule 8(a) in that his motion implicitly proposed that at least two and perhaps as many as five separate trials would be required to prosecute all ten counts of the indictment. Given the obvious burden imposed upon the prosecution and the trial court in terms of both time and expense, such a result would be as intolerable as it is unnecessary. That is especially true here because the evidence in any ...

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