concurring and dissenting.
The majority of the court finds no fault with Standefer’s convictions on Counts 1, 3 and 5 of aiding and abetting a federal revenue agent to receive a gratuity when the agent, Niederberger, as principal, had been acquitted in a previous jury trial. Count 1, relating to the Pompano Beach gratuity, charged Standefer with aiding a violation of 26 U.S.C. § 7214(a)(2);1 Count 3 was related to the Doral Country Club, and Count 5, the Seaview Country Club. Nied-erberger had been acquitted of the same charges under 26 U.S.C. § 7214(a)(2), although convicted under 18 U.S.C. § 201(g) 2 with regard to the Doral and Seaview vacations. Because I would hold that Counts 1, 3 and 5 should have been dismissed as a matter of law, I would reverse those convictions and vacate the sentences imposed thereon, while affirming the convictions on the remaining six counts.
*1099My disagreement with the majority reaches to the foundation of criminal law— nullum crimen, nulla poena, sine lege (no one shall be punished for anything not expressly forbidden by law). The government, not content with convictions on six facially legitimate counts, presses for an affirmance of these three controversial counts, on which concurrent sentences were imposed, for aiding and abetting a principal to commit a crime previously found not to have been committed.
My position is straightforward and blunt — you cannot clap with one hand; it takes two to tango; to be guilty of aiding another to commit a crime there must first be a crime. I do not accept the convoluted rhetoric advanced by the government but adhere to the position I took in United States v. Bryan, 483 F.2d 88 (3d Cir. 1973) (in banc) (Gibbons, J., dissenting), that a person cannot be convicted of aiding and abetting a principal when that principal has been acquitted of committing the charged offense.
I.
In granting rehearing in banc, the court solicited briefing on the question whether Bryan should be overruled. The court, however, has now excursed into new territory beyond the jural exploration of any cited precedent, and has transformed the dubious rule of Bryan into a precedent fortissimo.
The crime charged in Bryan was stealing whiskey, a crime which requires proof of criminal intent. The question posed at Bryan’s trial was whether the principal had a criminal intent to steal or was an “innocent dupe.” The district court, sitting as trier of fact, found no criminal intent on the part of the principal and therefore acquitted him. It nevertheless found that although the principal did not intend to steal, Bryan intended that the principal steal the whiskey, and accordingly convicted him. This court affirmed Bryan’s conviction as an aider and abettor.
Two factors distinguish Bryan from this case. First, the offense in Bryan required proof of the principal’s criminal intent, and second, Bryan might have been charged as a principal rather than as an aider and abettor. With respect to criminal intent in Niederberger’s case, however, we held that the guilt of the principal could be established by proof of
a public official’s receipt of a gratuity, to which he was not legally entitled, given to him in the course of his everyday duties, for or because of any official act performed or to be performed by such public official, and he was in a position to use his authority in a manner which could affect the gift-giver.
United States v. Niederberger, 580 F.2d 63, 69 (1978). Thus, this court determined that the government, to make out a case under § 7214(a)(2), need not prove criminal intent by Niederberger to do a specific reciprocal act. Furthermore, it is a crime to receive a gratuity under 26 U.S.C. § 7214(a)(2) only if the gratuity is received by a federal revenue agent in his official capacity. Not being a federal agent, Standefer could not have been indicted as a principal as a matter of statutory definition. Standefer’s convictions could thus be reversed without disturbing the viability of the rule in Bryan ; conversely, Standefer’s convictions cannot be affirmed without a dramatic extension of Bryan.
II.
The court characterizes its affirmance as adherence to the “clear majority position,” the view of the Model Penal Code, and the view favored by most commentators. Maj. op. at 1086. I disagree with this conclusion of the majority. Indeed, upon analysis, it can be seen that our court’s approach here is a lonely one. The majority cites only one case which remotely resembles the unusual setting of this case — conviction of an aider and abettor, despite acquittal of the principal, of a crime for which he could not himself have been charged as a principal. United States v. Azadian, 436 F.2d 81 (9th Cir. 1971). Even the questionable decision in Azadian is distinguishable because the sole reason for the public official’s acquittal *1100there was the trial court’s dismissal of the charge due to her entrapment by a government agent. Because the rule in the Ninth Circuit requires a defendant to admit the criminal act before he can successfully assert a defense of entrapment, it is evident that the offense by the principal was established at the joint trial. The principal was acquitted “not because inducement negatives criminal intent and thus establishes the fact of innocence; but because Government agents should not be permitted to act in such a fashion. The defense does not so much establish innocence as grant immunity from prosecution for criminal acts con-cededly committed.” Id. at 83 (my emphasis). Thus Azadian involved conviction of an aider and abettor when the principal’s criminal acts were conceded. In an effort to apply Azadian to the facts in Standefer, the majority intimates that a similar concession exists here. Although the occurrence of certain golfing trips was established, the criminality of those events is ably and vigorously contested by Standefer and is controverted by the jury verdict at Niederberger’s trial.
The majority recognizes the cases of United States v. Shuford, 454 F.2d 772 (4th Cir. 1971) and United States v. Prince, 430 F.2d 1324 (4th Cir. 1970), which held unambiguously that no conviction of an aider and abettor can stand when the only named principal has been acquitted. And in a markedly understated tone, the majority opinion notes a “scattering” of cases which “take an ambivalent view.”3 I do not find the cases to be ambivalent; I suggest that they unequivocally oppose the result reached by the court and that they severely cloud the “clear” majority position. The question is far closer than the court is willing to admit.
Even if it were the “clear majority position” that an aider and abettor may be convicted despite acquittal of the principal, the result reached in this case is a giant step beyond the holdings in any of the cases cited by the majority. Professor Edward H. Levi has neatly described the common law decisional process: “the scope of a rule of law, and therefore its meaning, depends upon a determination of what facts will be considered similar to those present when the rule was first announced. The finding of similarity or difference is the key step in the legal process.”4 Recognition of the differences between the material facts of this case and those implicated in every case cited in support of the result reached by the majority leads me to conclude that the cases do not authoritatively support the majority’s result.
The Second and Tenth Circuit cases, United States v. Deutsch, 451 F.2d 98 (2d Cir. 1971), cert. denied, 404 U.S. 1019, 92 S.Ct. 682, 30 L.Ed.2d 667 (1972), and United States v. Coppola, 526 F.2d 764 (10th Cir. 1975), were both plea bargain cases. Both affirmed aiding and abetting convictions when principals had pleaded guilty to lesser included offenses or to other counts of the indictments. Recognizing the compromise nature of such proceedings, the courts saw no inconsistency in the aiding and abetting convictions. Neither case involved the acquittal of the principal.
The Sixth Circuit case, Kelly v. United States, 258 F. 392 (6th Cir.), cert. denied, 249 U.S. 616, 39 S.Ct. 391, 63 L.Ed. 803 (1919), did not even involve an indictment under the aiding and abetting statute. In rejecting a challenge to the sufficiency of the indictment, the court’s alternative answer included in dictum, a statement that persons formerly chargeable as aiders and abettors “may be indicted and prosecuted as principals, whether the principal offender has been indicted and acquitted . or has not been indicted at all . .” Id. at 402 (citations omitted). The statement certainly cannot be regarded as part of the holding of the case.
*1101The Eighth Circuit case, Pigman v. United States, 407 F.2d 237 (8th Cir. 1969), likewise involved no aiding and abetting charge. Rejecting appellant’s contention that the government’s theory pointed to a codefendant as the principal, the court stated that the appellant “appears to be the instigator and the principal. But if not the principal, the evidence duly shows him to be an aider and abettor. The principal need not be convicted in order to convict a person as an abettor,” relying on Hendrix v. United States, 327 F.2d 971, 975 (5th Cir. 1964). In Hendrix, the appellant was charged both as an aider and abettor and as a principal, and his conviction was affirmed despite insufficiency of identification evidence against a codefendant. The court simply held that an aider and abettor may be convicted if he assisted a principal, even if the principal is not identified. Neither Hendrix nor Pigman stands for the broad proposition asserted by the majority.
Gray v. United States, 104 U.S.App.D.C. 153, 260 F.2d 483 (1958), is a very brief per curiam opinion in which it appears that the appellant was charged as a principal, not as an aider and abettor. That opinion relies on two cases, neither of which involved acquittal of a principal. In one, Meredith v. United States, 238 F.2d 535, 542 (4th Cir. 1956), no principal was charged, and in the other, Colosacco v. United States, 196 F.2d 165, 167 (10th Cir. 1952), the principal had pleaded guilty. Moreover, the more recent case of United States v. Smith, 156 U.S.App.D.C. 66, 69, 478 F.2d 976, 979 (1973), suggests that the District of Columbia Circuit would now require acquittal of an aider and abettor if the principal were acquitted:
Jarvis was convicted upon the theory that he aided and abetted Smith. Logically it follows that if the principal Smith had been acquitted Jarvis should also have been found not guilty; in other words' error that damaged Smith’s defense was also prejudicial to Jarvis. Accordingly we think the interests of justice require that the conviction of Jarvis should also be reversed.
The First Circuit case of Giragosian v. United States, 349 F.2d 166 (1st Cir. 1965), also discussed in the majority opinion, charged an aider and abettor with a crime for which he could not have been indicted as a principal because the substantive statute, 18 U.S.C. § 656, applied only to bank officers, directors or employees. The conviction of the aider and abettor was reversed because the government had failed to produce sufficient evidence that the principal, a bank officer who was not tried, had committed the substantive offense.
Both the Second and Seventh Circuits have recently rejected this court’s position in Bryan. Each approved an instruction to a jury in trials of defendant principals that a codefendant aider and abettor could not be convicted without conviction of the principal. In United States v. Bernstein, 533 F.2d 775, 799 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976), the court stated that because “it is the law that a person cannot be found guilty of aiding and abetting unless a principal whom he has aided and abetted committed the criminal act,” it was not error to instruct the jury that the aider and abettor could not be convicted unless the jury also convicted the principal. United States v. Stevison, 471 F.2d 143, 147-78 (7th Cir. 1972), cert. denied, 411 U.S. 950, 93 S.Ct. 1933, 36 L.Ed.2d 411 (1973), under almost identical facts, affirmed a similar jury instruction because “[t]he presupposition that an aider and abettor may be convicted, since 1951, absent conviction of the principal is invalid.”
Therefore, our Bryan case and the Fifth Circuit case of United States v. Musgrave, 483 F.2d 327 (5th Cir. 1973), are the only two cases which unequivocally hold that the acquittal of the only principal does not preclude conviction of the aider and abettor. If circuit-counting is a proper consideration, there is more precedential support to the view I espouse than there is for this court’s majority view.
III.
The court distinguishes the acquittal of the aiders and abettors in Shuttlesworth v. City of Birmingham, 373 U.S. 262, 83 S.Ct. *11021130, 10 L.Ed.2d 335 (1963), because “[t]he act that they had helped to bring about was simply not a criminal act” but was constitutionally protected. The court, therefore, finds irrelevant the Supreme Court’s statement, “It is generally recognized that there can be no conviction for aiding and abetting someone to do an innocent act.” Shuttlesworth, supra, at 265, 83 S.Ct. at 1132. But it is precisely because “Standefer himself admitted that all the vacations listed in the indictment were provided to Niederberger and paid for by Gulf,” maj. op. at 1088, that Niederberger’s acquittal can only be interpreted as a jury finding that receipt of the vacations in question was an innocent act. I do not think Shuttlesworth, the only Supreme Court pronouncement on the subject, can be so cavalierly dismissed.
IV.
My focus thus far has been to demonstrate major distinctions between the material facts before us and those present in Bryan and other cases relied on by the majority. This is not to agree that Bryan was a sound decision, however, for with Chief Judge Seitz I joined in Judge Gibbons’ dissent. I reaffirm my endorsement of Judge Gibbons’ analysis in Bryan;5 a fortiori, I would not extend that holding beyond the facts which controlled there. A court “must be alert to see that a doubtful precedent be not extended by mere analogy to a different case if the result will be to weaken or subvert what it conceives to be” sound legal precepts. Dimick v. Schiedt, 293 U.S. 474, 485, 55 S.Ct. 296, 300, 79 L.Ed. 603 (1935).
What divided the Bryan court and what divides the court here is the weight to be placed on competing principles of criminal law when the source of decision is not unerringly supplied by precedent, statute or the Constitution. My conclusion is predicated on different principles than those selected by the majority. Three fundamental reasons convince me that an aider and abettor cannot be convicted when the only possible principal has been acquitted.
A.
The first is my doubt that Congress, in enacting 18 U.S.C. § 2, the aiding and abetting statute, ever intended that an aider and abettor might be convicted when the principal has been acquitted. Although this court has asserted for thirty years that a defendant may be convicted of aiding the commission of a felony under 18 U.S.C. § 2 even though the alleged principal has been acquitted, see United States v. Klass, 166 F.2d 373, 380 (3d Cir. 1948), I believe that our position has not properly reflected congressional intent.
Common law distinguished between felonies and misdemeanors for the purpose of accomplice liability. See W. LaFave & A. Scott, Criminal Law 496 (1972). The criminal responsibility of an accessory to a non-capital felony was purely derivative, that is, conviction or outlawry of the principal was an absolute prerequisite to conviction of the accessory. If the principal was unknown, at large, or pardoned prior to trial, the accessory could not be punished. Needless to say, acquittal of the principal precluded conviction of the accessory. See generally id. at 495-501. Where the substantive offense was a misdemeanor, however, all participants, including accessories before the fact, were considered principals in the offense and could be tried, convicted, and punished without regard to the disposition of charges against other parties. See id. at 496.
Under federal law, of course, there are no common law crimes. The federal courts have jurisdiction only over actions specifically proscribed by Congress. United States v. Hudson, 11 U.S. (7 Cranch) 32, 3 L.Ed. 259 (1812). Thus, in the nineteenth century, a person could be convicted in federal court of aiding and abetting a particu*1103lar felony only if Congress had defined aiding and abetting that felony as a crime. See, e. g., United States v. Crane, 25 Fed. Cas. p. 691, No. 14,888 (C.C.D.Ohio 1847). Congress, employing a variety of formulations, scattered a number of specific accessory provisions throughout the statutes of the period. See, e. g., Act of March 3, 1825, ch. 64, § 45, 4 Stat. 114 (buying stolen mail); R.S. § 5323 (1878) (piracy); R.S. § 5427 (1878) (naturalization offenses); R.S. § 5466 (1878) (destroying mail).
Where a federal statute made the substantive offense a misdemeanor, however, no specific statutory authorization was necessary to prosecute an accomplice. See United States v. Mills, 32 U.S. (7 Pet.) 138, 141, 8 L.Ed. 636 (1833). The federal courts simply assumed that Congress had acted on the common law principle that “all who aid, abet, procure, or advise the commission of a misdemeanor are guilty as principals.” United States v. Snyder, 14 F. 554, 556 (C.C.D.Minn.1882). See also Gallot v. United States, 87 F. 446, 448 (5th Cir. 1898).
This scheme prevailed until Congress revamped the federal penal code in 1909, when it enacted a general provision making it a crime to aid or abet the commission of any federal offense:
Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.
Act of March 4, 1909, ch. 321, 35 Stat. 1152. This provision became § 332 of the penal code and has survived without relevant substantive change. It is now codified at 18 U.S.C. § 2(a), the provision at issue in this case.
Four years after the enactment of § 332, the Ninth Circuit offered an interpretation of Congress’s intent:
The effect of the section under consideration is to abolish the distinction between principals and accessories in offenses defined in the laws of the United States, whether the same be felonies or misdemeanors. . . . [Section 332] is a recognition by Congress that the old distinction between principals and accessories which pertained to felonies is generally abrogated, and that a charge against one formerly known as an accessory is good against him as principal.
Rooney v. United States, 203 F. 928, 932 (9th Cir. 1913).
Several courts, including our own, accepted Rooney’s analysis uncritically, holding that Congress had intended to treat all accessories in the same manner as accessories to misdemeanors had been treated at common law. See United States v. Klass, supra, 166 F.2d at 380; Von Patzoll v. United States, 163 F.2d 216, 218 (10th Cir. 1947). See also United States v. Bryan, 483 F.2d 88, 95, 98 (3d Cir. 1973) (in banc); Kelly v. United States, 258 F. 392, 402 (6th Cir. 1919). In the absence of other evidence, this analysis might be persuasive because Congress treated felons and misdemeanants uniformly and employed the terminology “is a principal” which was often used at common law to refer to the legal status of an accessory to a misdemeanor.
Primary evidence of congressional intent, however, is available. The final form of § 332 was reported out of the Senate on January 7, 1908. The report accompanying the bill is enlightening. See S.Rep.No.10, pt. 1, 60th Cong., 1st Sess. (1908). First, the report indicates that § 332 was derived, not from common law or state statutes, but from two specific accomplice statutes then in effect, R.S. § 5323 (piracy) and R.S. § 5427 (naturalization offenses). In explaining the introduction of § 332 and its companion provision setting the relevant penalties, the Senate noted “[t]hese sections are new only in the sense that they are made general in their application. They explain themselves.” See S.Rep.No.10, pt. 1, at 26.
Moreover, the Senate clearly stated its purpose in enacting a general accomplice provision:
The committee has deemed it wise to make those who are accessories before the fact at common law principal offenders, thereby permitting their indictment and conviction for a substantive offense.
*1104At common law an accessory cannot be tried without his consent before the conviction or outlawry of the principal except where the principal and the accessory are tried together; if the principal could not be found or if he had been indicted and refused to plead, had been pardoned or died before conviction, the accessory could not be tried at all. This change of the existing law renders these obstacles to justice impossible.
5. Rep.No.10, pt. 1, at 13.
This report does not indicate that the Senate even recognized the common law distinction between felonies and misdemeanors for the purpose of accomplice liability, let alone intended to abrogate it entirely. I cannot conclude that Congress would have abolished such a rule of law, as suggested by Rooney, without indicating in some way that it perceived the rule in the first place.
In addition, the report tells us that an accomplice could be convicted when the principal escaped, failed to plead, was pardoned, or died. The Senate expressed a clear intention to remove “these” impediments to justice. Conspicuously and significantly absent from this litany is any mention to the case where the principal has been acquitted.
To the extent that Rooney and subsequent cases interpreted § 332 and its descendants by generalizing the common law misdemeanor rule, I believe they have been in error. Congress has spoken on the issue, and what ambiguity remains must be construed in favor of the defendant. Chief Justice Marshall, in a similar context, stressed the predominance of this latter rule over other “maxims or rules for the construction of statutes”:
The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle, that the power of punishment is vested in the legislative, not in the judicial department.
United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820). The viability of this principle has been reasserted with emphasis in recent Supreme Court opinions. Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979); United States v. Naftalin, 441 U.S. 768, 99 . S.Ct. 2077, 60 L.Ed.2d 624 (1979); United States v. Culbert, 435 U.S. 371, 379, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978).
B.
The second reason why I think acquittal of the principal requires acquittal of the aider and abettor has been aptly stated by the majority:
The problem of allowing two seemingly inconsistent verdicts to survive is naturally troubling, and a rule of law that eliminates such apparently contradictory results is, therefore, not without appeal. Moreover, in the criminal context, the government’s success in securing a guilty verdict against an aider and abettor after failing to secure such a verdict against a principal may strike some as giving the prosecution “two bites at the apple” and therefore as bordering on unfairness.
Maj. op. at 1088. “There is much to be said, in the criminal law context, for associating the doctrine of collateral estop-pel with the principles of due process. Plainly, the appearance of evenhandedness in the administration of justice weighs heavily among our jurisprudential concerns, and estoppel is directly addressed to that appearance.” United States ex rel. Hubbard v. Hatrak, 588 F.2d 414, 417 (3d Cir. 1978). This is an institutional reason,6 implementing the maxim that “justice must satisfy the appearance of justice,”7 which *1105has little to do with the individual rights of Standefer.
Surely the public will not readily understand the court’s holding that a revenue agent did not receive a gift but a private citizen helped him receive the gift he did not receive. This is the stuff that “sidebars” in newspapers are made of, that smirking telecasters eagerly devour in thirty-second squibs. “People do take judicial reasoning seriously,” Professor Charles A. Miller has observed, “and they are not fools nor being fooled in doing so, at least no more than in other forms of communication or with respect to other strands that form the web of a political culture.”8 Legal reasoning cannot be artificial, esoteric, or understandable only to an elite legal priesthood; it must be capable of public comprehension.
Standefer is not proposing, nor do I propose, “to give him refuge in the imagined remnant of a common law rule regarding the dependency of verdicts against aiders and abettors.” Maj. op. at 1091. But neither do I assume that “a tidy consistency” is equivalent to a foolish consistency,9 and I am undaunted by accusations of pursuing “scholastic quiddities.” Id. I insist that a small measure of consistency is essential, that there must be some dependency between aiding or abetting and the offense that is aided or abetted. Simply put, in our language these are transitive verbs. It is no justification for Standefer’s conviction that public reaction to exclusionary rules may be unpopular. Public reaction to Stan-defer’s conviction for aiding Niederberger to commit an offense which a previous jury had acquitted Niederberger of committing will be, and should be, equally unpopular.
The result I would reach concededly may be considered an application of some form of collateral estoppel. To reach the result, however, it is not necessary to broadcast a principle that non-mutual collateral estop-pel will henceforth control all criminal cases in this circuit. I am mindful of the pitfalls noted by the majority which would attend promiscuous and indiscriminate application of the concept. I agree that if this were the law, “many prosecutors would need to calculate when to stop pursuing confederates and co-conspirators for fear of automatically reversing a string of successful prosecutions.” Maj. op. at 1095. In the rush to reaffirm and extend the rule of Bryan, however, the case of Mr. Standefer seems somehow to have been forgotten. Regardless of the issue on which rehearing in banc was granted, the court is deciding this criminal case and no other. Instead of speculating about a string of successful prosecutions in other cases, we must focus on a relatively short string of prosecutions — the successful trial of Standefer preceded by the unsuccessful trial of Nieder-berger. We need not theorize about complex inchoate criminal cases with multiple and lengthy trials, multiple defendants, great variations in available and admissible evidence and a host of other factors not present in this case. Our system of adjudication is the common law tradition, the adjudication of the specific instance. “Every new case is an experiment; and if the accepted rule which seems applicable yields a result which is felt to be unjust, the rule is reconsidered.”10 Our tradition “creeps from point to point, testing each step,”11 and is preeminently a system built up by gradual accretion. We decide only the facts before us, attaching a definite detailed legal consequence to a definite detailed set of facts.
*1106To consider consequences that might occur in other cases containing factual problems not before us is always legitimate, whether in a lawyer’s brief or a judge’s opinion, but it is just argument. The rules of logic inexorably limit permissible rhetoric; one risks committing the fallacy of division, erroneously reasoning that what holds true of a composite whole necessarily is true for each component part considered separately, or being seduced into the fallacy of ignoratio elenchii, irrelevant evidence, proving unrelated point B instead of point A, which is at issue, or disproving point D instead of point C.
Here, we are confronted with two short trials of two individual defendants on virtually identical indictments returned simultaneously by the same grand jury on essentially the same evidence involving a common set of facts. If, in this case, my analysis is an application of collateral estoppel, I do not argue that collateral estoppel is mandated by due process. But to hold that estoppel is not constitutionally required does not mean that other sound reasons do not warrant its application. I am convinced that under the facts of this case, the need for the appearance of justice demands this result. To this extent I join Judge Gibbons’ views on collateral estoppel set forth in his concurring opinion.
C.
Finally, I detect in the majority’s analysis what seems to be a presumption of guilt which cannot be overcome by a jury verdict of acquittal. Because of “seemingly contradictory findings,” maj. op. at 1096, the court apparently feels free to speculate as to what might have prompted Niederber-ger’s acquittal — presumably something other than his innocence. The majority sees no injustice in allowing the government another chance to prove Niederberger’s guilt in a second trial, so long as Niederbérger is not present to defend himself. Because the
government was permitted to convince Standefer’s jury that Niederberger was guilty, the majority finds both a guilty principal and a valid aiding and abetting conviction without anyone having been placed twice in jeopardy. This reasoning is foreign to our system of criminal law; that it constitutes fundamental unfairness to Standefer cannot be gainsaid.
The competing principles at work here are well known. The government has a justifiable interest in seeing that crime be prevented, public safety promoted, public norms of behavior vindicated by the imposition of merited punishment, and anti-social conduct deterred by the imposition of penalties. The appellant, on the other hand, invokes the guiding principle of criminal law — the presumption of innocence — and the complementary principles that penal laws are to be strictly construed, that ambiguities should not be resolved so as to embrace offenses not clearly within the law, that facts charged and proved must bring the defendant plainly and unmistakably within the statute, and that no person can be criminally punished unless the acts for which he is punished were clearly forbidden.
Judges constantly strive to seek an accommodation between these sets of competing principles. There are times, however, when the scales seem evenly balanced, when it is difficult to determine exactly where the weight does lie. At these times the jural philosophy of the individual judge comes into play, consciously or otherwise, by means of a value judgment that places a greater weight on one competing principle than another. “Indeed, the most important attributes of a judge are his value system and his capacity for evaluative judgment,” writes Professor Robert S. Summers. “Only through the mediating phenomena of reasons, especially substantive reasons, can a judge articulately bring his values to bear.”12
*1107The issue before us constitutes a classic example of how one’s jural philosophy may predetermine a decision. When confronted by a close case in criminal law, necessitating the expression of a value judgment, I cast my lot in favor of the individual and not the society that seeks to regulate his conduct. To me this is an a priori proposition distilled not only from the Constitution but from the philosophical foundation of Anglo-American common law. “Administration of a technical and often semantical criminal justice system is the price we pay for the balance struck in the Constitution between the federal government and the individual defendant.” Bryan, supra, 483 F.2d at 99 (Gibbons, J., dissenting).13 The balance is struck because, in Dean Rostow’s words, “[t]he root idea of the Constitution is that man can be free because the state is not.”14
The expression of this value judgment is not confined to the fashioning of a rule for a particular case. It begins with the choice of a controlling legal precept, continues through the interpretation of that choice, and persists finally in the application of the precept as interpreted to the facts at hand. Value judgments inhere throughout; it is not a mechanical process.15 Values do not form in a vacuum; their range depends always on factual limitations. Thus, judges’ decisions are governed by their beliefs about facts as well as abstract rules; the act of deciding involves both the determination of material facts and the determination of what rules are to be applied to the facts. Jerome Frank observed, cynically perhaps, that a judge “unconsciously selects those facts which, in combination with the rules of law which he considers to be pertinent, will make ‘logical’ his decision.”16
At bottom there are two dimensions of this court’s division, a division which can be traced to basic differences in values. One dimension involves the analysis of the materiality of the facts in this case and the facts *1108in other cases cited by the court. To decide which facts are similar and material is a purposeful decision. The second dimension is the decision to extend a rule to a variant set of facts. To do this a judge must first be convinced that the rule being extended is a desirable one. I find the Bryan rule offensive to the integrity of our judicial institution and to those principles protecting an individual’s freedom, which I believe deserve priority over those favoring the society that would regulate him. For these telling reasons I am loathe to extend the rule beyond the limited facts which gave it birth.
Chief Judge SEITZ joins in Judge ALDISERT’S opinion except that his dissenting position is based solely on IV-A of the opinion.
. 26 U.S.C. § 7214(a)(2) imposes a criminal sanction against:
Any officer or employee of the United States acting in connection with any revenue law of the United States—
(2) who knowingly demands other or greater sums that are authorized by law, or received any fee, compensation, or reward, except as by law prescribed, for the performance of any duty.
. 18 U.S.C. § 201(g) provides:
Whoever, being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him;
Shall be fined not more than $10,000 or imprisoned for not more than two years, or both.
. United States v. Bernstein, 533 F.2d 775, 799 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976); United States v. Smith, 156 U.S.App.D.C. 66, 478 F.2d 976 (1973); United States v. Stevison, 471 F.2d 143 (7th Cir. 1972), cert. denied, 411 U.S. 950, 93 S.Ct. 1933, 36 L.Ed.2d 411 (1973).
. Levi, An Introduction to Legal Reasoning, 15 U.Chi.L.Rev. 501, 502 (1948).
. Judge Gibbons has now retreated somewhat from the position he took in 1973. See concurring opinion, p. 1108: “I agree with the conclusion in Parts I and II of the majority opinion that the acquittal of a principal does not, . necessarily preclude the conviction of one charged with aiding and abetting.”
. I use the description “institutional reason” in this respect somewhat differently than Professor Robert S. Summers in his important taxonomic analysis of substantive reasons in judicial opinions. See Summers, Two Types of Substantive Reasons: The Core of a Theory of Common-Law Justification, 63 Cornell L.Rev. 707, 722-24 (1978).
. Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954); accord 2 J. B. Atlay, Victorian Chancellors 460 (1908) (quot*1105ing Lord Herschell: “[important as it was that people should get justice, it was even more important that they should be made to feel and see that they were getting it.”). United States v. Birdman, 602 F.2d 547, 554 n.25 (3d Cir. 1979).
. C. Miller, The Supreme Court and the Uses of History 12 (1969).
. “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” Emerson, Self Reliance (1841).
. M. Smith, Jurisprudence 21 (1909).
. A. Whitehead, Adventures of Ideas, Chap. 2, § 6.
. Summers, supra note 6, at 710. Consider also the observations of Professor Paul Freund:
Much of law is designed to avoid the necessity for the judge to reach what Holmes called his “can’t helps,” his ultimate convic*1107tions or values. The force of precedent, the close applicability of statute law, the separation of powers, legal presumptions, statutes of limitations, rules of pleading and evidence, and above all the pragmatic assessments of fact that point to one result whichever ultimate values be assumed, all enable the judge in most cases to stop short of a resort to his personal standards. When these prove unavailing, as is more likely in the case of courts of last resort at the frontiers of the law, and most likely in a supreme constitutional court, the judge necessarily resorts to his own scheme of values. It may therefore be said that the most important thing about a judge is his philosophy; and if it be dangerous for him to have one, it is at all events less dangerous then the self-deception of having none.
Freund, Social Justice and the Law, in Social Justice 93, 110 (R. Brandt ed. 1962).
. “The problem is not so much that the acquittal of the so-called principal requires the acquittal of the aider and abettor. Under statutes such as 18 U.S.C. § 2, the aider and abettor is in law guilty of the substantive offense to the same extent as the so-called principal. The offense of each is complete in itself without the dependency of one on the other. . . The grand jury did not indict Bryan as a principal. It did not indict him as an aider and abettor of persons unknown. It indicted him as an aider and abettor of a specific named principal. The Government in response to a motion for a bill of particulars reiterated that Echols was the thief who stole the whiskey with an intent to convert it to his own use and that Bryan aided and abetted Echols by supplying the means by which Echols converted the whiskey to Echols’ own use. . The district court may not convict him of being an aider and abettor on the basis of evidence relevant only to a charge of being a principal; a charge for which he was not indicted.” United States v. Bryan, supra, 483 F.2d at 98 (Gibbons, J., dissenting).
. Rostow, The Democratic Character of Judicial Review, 66 Harv.L.Rev. 193, 195 (1952).
. In deciding whether to apply a given precept to a case before him, the judge must, if he is to be guided or controlled by substance rather than form, accommodate the interests now pressing for recognition in terms of the interest accommodations made by the precept in question. If he determines that there is a complete correspondence between the specific interests before him and the interests considered and accommodated in the precept, the case can be “decided” by applying, through a process of logical analysis, that precept. The crucial step, the decision that the abstract pattern of interests accommodated in the precept and the concrete pattern to be accommodated, is not a purely mechanical operation.
A. Von Mehren, The Civil Law System 822 (1957).
. J. Frank, Law and the Modem Mind 134-35 (1930).