Monday, March 21, 2011

Lesser Included Offense to Rescue a Conviction After Confusion of Liability as Aider and Abetter or Causer

I have recently had several blogs arising from the Larson and Pfaff petition relating to the concepts of aider and abetter liability and causer liability under 18 USC §§ 002(a) and (b), respectively.  (To review those, click on the labels below.) Contemporaneously, in the Tax Fraud and Money Laundering class that Larry Campagna and I teach at the University of Houston Law School, we recently covered the lesser included offense concept.  So, I  present today one case where these concepts came together.  I think it nicely illustrates the lesser included offence concept in a nontraditional setting where it is used to save a conviction after the prosecution blurred the roles of the two types of liability under 18 USC § 2.

In United States v. Motley, 940 F.2d 1079, 1082 (7th Cir. 1991), the defendant, an income tax preparer who prepared false returns, had been charged and convicted under 18 U.S.C. §§ 287 and 2(a). The court held that the defendant was not guilty of aiding and abetting under subsection § 2(a) under which he was tried because the Government failed to prove the taxpayers committed the underlying crime. The Seventh Circuit refused to allow the Government to switch on appeal to subsection § 2(b), causer liability, which does not have the element of requiring that there be one or more other persons guilty of the underlying crime. But, the Seventh Circuit saved the day for the Government by holding the defendant liable for the lesser included offense of § 7206(2) which did not have the element requiring that another person (here the taxpayers) be guilty of the crime. The Court reasoned after giving the taxpayer his accomplice victory:
Our analysis does not end here, however.  Motley does not claim on appeal that he had no connection to the illegal deeds charged in the indictment, only that the government selected the wrong statute under which to charge him. According to Motley, the government could have secured a valid conviction under 26 U.S.C. § 7206(2), which makes it a felony to “aid[] or assist[] in . . . the preparation or presentation under . . . the internal revenue laws, of a return . . . which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return.” (emphasis supplied). Obviously, a conviction for aiding and abetting under this section does not require proof that the taxpayer committed an offense against the government. See United States v. Hooks, 848 F.2d 785, 791 (7th Cir. 1988).

At oral argument, we asked defendant's counsel if section 7206(2) was not simply a lesser-included offense of the section 2/section 287 violation charged in Motley's indictment, and he conceded that it was. A lesser-included offense is one whose elements are a subset of the elements of a greater offense. Schmuck v. United States, 489 U.S. 705 (1989); see also Sansone v. United States, 380 U.S. 343, 350, (1965) (“the lesser offense must be included within but not . . . be completely encompassed by the greater”). A lesser-included offense is thus by definition included in an indictment charging a greater offense. Cf. Schmuck, 109 S. Ct. at 1451 (an indictment contains the elements of both lesser and greater offenses, giving the defendant notice that he or she may be convicted of either). “It is clear that a defendant need not be charged with a lesser included offense in order to be found guilty thereof.” United States v. Martel, 792 F.2d 630, 638 (7th Cir. 1986); see also United States v. Teslim, 869 F.2d 316, 325 (7th Cir. 1989) (a “'defendant may be found guilty of an offense necessarily included in the offense charged'”) (quoting Fed. R. Crim. P. 31(c)). In this case, defendant conceded that section 7206 is a lesser-included offense of the greater offense charged in sections 2 and 287. We agree. The two crimes are identical except for the underlying offense requirement. Under section 2(a) -- the only section mentioned to the jury in this case -- the government must offer proof that the taxpayers committed some offense, i.e., that they had knowledge that their returns were fraudulent. Under section 7206(2), proof of an underlying offense is unnecessary.

We thus conclude that Motley was properly convicted under section 7206(2), a lesser-included offense of his charged offense.
Students should note that Motley's conviction was sustained for direct principal liability under § 7206(2), the aiding and assisting provision, which requires no guilty taxpayer and thus moots the need for either aiding and abetting or causer liability under 18 USC § 2.

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