Paula Schwartz Frome (James O. Druker, Kase & Druker, Garden City, N.Y., of counsel), for defendant-appellant John Musacchia.

Charles L. Weintraub (John L. Pollok, Hoffman & Pollok, New York City, of counsel), for defendant-appellant Joseph Gambino.

Alan Hechtkopf, Tax Div., Dept. of Justice (James I.K. Knapp, Acting Asst. Atty. Gen., Shirley D. Peterson, Asst. Atty. Gen., Robert E. Lindsay, Atty., Tax Div., Dept. of Justice, Washington, D.C., and Andrew J. Maloney, U.S. Atty., E.D.N.Y., of counsel), for appellee U.S.

Before CARDAMONE and PRATT, Circuit Judges, and LASKER, District Judge*.

Following a jury trial in the Eastern District of New York before Judge Leonard D. Wexler, appellant John Musacchia was convicted of willfully aiding and abetting willful attempts to evade and defeat the federal excise tax on gasoline, in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2; willfully aiding and abetting willful failures to truthfully account for and pay over to the IRS federal excise taxes on gasoline, in violation of 26 U.S.C. § 7202 and 18 U.S.C. § 2; and conspiracy to defraud the United States and to commit the foregoing offenses, in violation of 18 U.S.C. § 371. Musacchia's co-appellant, Joseph Gambino, was charged with the same offenses in five counts of the indictment and was convicted on the conspiracy count only.

On March 21, 1990 the present panel affirmed appellants' convictions. 900 F.2d 493. A petition for rehearing, with suggestion for rehearing en banc, was denied on May 24, 1990.

With commendable candor the Department of Justice on July 18, 1990 moved for a partial remand to vacate appellant Musacchi's convictions. Although the issue was not raised in the briefs the government advises that after further study and consultation with the Internal Revenue Service it is now convinced that § 7202 does not apply to the gasoline excise taxes at issue here. It therefore moved in the interest of justice that Musacchia's convictions under that section be remanded to the district court for it to vacate the convictions and set aside the sentences imposed pursuant to them.

Counsel for the appellants submitted answering papers and moved, in addition, for a remand and new trial on the conspiracy count. Because we cannot determine whether the conspiracy conviction was based properly on a violation of § 7201 or, as now appears, improperly on § 7202 a new trial must be had for both appellants on the conspiracy count. Because Gambino was acquitted on both § 7201 and § 7202 it is plain that he is entitled to a new trial. In the case of Musacchia who was convicted under both sections, his conspiracy conviction may have been founded improperly on § 7202 because the trial court charged that

"although the indictment charges that the defendants conspired to achieve more than one illegal objective, you are instructed that you need only find that one of these illegal objectives was contemplated by the conspirators even if it were not achieved."

Because there was no special verdict, it is not possible to discern whether the jury found him guilty of conspiracy based on § 7201 or § 7202; hence, he, too, is entitled to a new trial. See United States v. Ruggiero, 726 F.2d 913, 921-23 (2d Cir.1984).

Accordingly, it is hereby ORDERED that the above case be and it hereby is remanded to the district court for the purpose of vacating appellant Musacchia's convictions under § 7202 (Counts III, V and VII of the indictment) and to vacate also the sentences imposed pursuant to those convictions. The case is further remanded for a new trial for both appellants on the conspiracy count for the reasons above stated.