dissenting in part:
Although I agree with much of what is said in the majority opinion, I respectfully dissent from the majority’s conclusion that there was sufficient evidence to support Rubin’s conviction for conspiracy to file false income tax returns.
Rubin was convicted by the jury of conspiring to cause Marilyn Wagner to file false income tax returns, in violation of 18 U.S.C. § 371 (1982), and of aiding and assisting her in the filing of such returns, in violation of 26 U.S.C. § 7206(2) (1982). Although it is possible for a jury to convict a person of both crimes based on the same set of facts, the two offenses are separate and distinct. A conviction under 26 U.S.C. § 7206(2) requires proof that a person willfully aided and assisted another in the filing of materially false returns, see United States v. Perez, 565 F.2d 1227, 1233-34 (2d Cir.1977); United States v. Dahlstrom, 713 F.2d 1423, 1426-27 (9th Cir.1983), cert. denied, 466 U.S. 980, 104 S.Ct. 2363, 80 L.Ed. 2d 835 (1984), whereas a conviction for conspiracy requires proof that two or more people knowingly and voluntarily entered into an agreement to file false returns. See United States v. Tyler, 758 F.2d 66, 70-71 (2d Cir.1985) (citing United States v. Bright, 630 F.2d 804, 813 (5th Cir.1980)). Thus, the critical difference between the two offenses is the unlawful agreement that must lie at the heart of any conspiracy. See United States v. Wardy, 777 F.2d 101, 107 (2d Cir.1985), cert. denied, 475 U.S. 1053, 106 S.Ct. 1280, 89 L.Ed.2d 587 (1986); United States v. Barnes, 604 F.2d 121, 154 (2d Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). The existence of such a conspiratorial agreement can be inferred by the jury from circumstantial evidence, see, e.g., Wardy, 111 F.2d at 107 (citing United States v. Turcotte, 515 F.2d 145, 150 (2d Cir.), cert. denied, 423 U.S. 1032, 96 S.Ct. 564, 46 L.Ed.2d 406 (1975)), but there must be evidence of some agreement. Id. (citing United States v. Kates, 508 F.2d 308, 310 (3d Cir.1975)).
Although Rubin was convicted of aiding the filing of false income tax returns under 26 U.S.C. § 7206(2) and not under the general aiding and abetting provision of 18 U.S.C. § 2 (1982), our decisions discussing the distinction between conspiracy crimes and aiding and abetting crimes illustrate the majority’s error in failing to distinguish between the two crimes at issue here. We have often pointed out that conspiring to commit a crime is a wholly separate and distinct offense from that of aiding and abetting another in the commission of an unlawful act. See, e.g., United States v. Carpenter, 791 F.2d 1024, 1035 (2d Cir. 1986), aff'd, — U.S. —, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987); Tyler, 758 F.2d at 70-71. As we have noted:
The essence of conspiracy is proof of a conspiratorial agreement while aiding and abetting requires there be a “community of unlawful intent” between the aider and abettor and the principal. While a community of unlawful intent is similar to an agreement, it is not the same. Thus, a defendant may wittingly aid a criminal act and be liable as an aider and abettor ... but not be liable *987for conspiracy, which requires knowledge of and voluntary participation in an agreement to do an illegal act.
Id. (quoting Bright, 630 F.2d at 813). The critical difference is that conspiracy “requires proof of [some] ‘preconcert and connivance not necessarily inherent in the mere joint activity common to aiding and abetting.’ ” Wardy, 111 F.2d at 107 (quoting United States v. Arrington, 719 F.2d 701, 705 (4th Cir.1983), cert. denied, 465 U.S. 1028, 104 S.Ct. 1289, 79 L.Ed.2d 691 (1984) (quoting United States v. Peterson, 524 F.2d 167, 174 (4th Cir.1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976)). Thus, when a defendant has been convicted both of conspiracy and of aiding and abetting, and the proof offered at trial has not adequately satisfied the more exacting standards for conspiracy, we have reversed the conspiracy conviction. See Wardy, 777 F.2d at 107-08; Tyler, 758 F.2d at 70-71.
In this case, there was no evidence from which the jury could reasonably have inferred that Marilyn Wagner was acting pursuant to an agreement with Rubin when she failed to report income earned in 1981 and 1982. It is true, as the majority notes, that Rubin had tried to make Wagner’s overall salary package more attractive by advising her that income from the Queens Democratic Organization (QDO) would be non-taxable. There is nothing to suggest, however, that Rubin elicited or sought an “agreement” from Wagner that she would, in fact, refrain from reporting the income. Moreover, there is no evidence that Rubin would have gained anything if Wagner did not report the income or lose anything if she did report it. When Wagner filed her income tax returns, it appears that she simply acted on Rubin’s bad legal advice provided during a previous conversation. Rubin’s limited remarks to Wagner at that time, as relayed to the jury by Wagner, could have created a reasonable inference that the two parties were engaged in the type of joint activity that is common to aiding, assisting or abetting. See Wardy, 111 F.2d at 107; Tyler, 758 F.2d at 70. However, his mere assistance in facilitating a subsequent unlawful act was insufficient to constitute the type of mutual agreement required for a conspiracy. See id. at 69-71.
I also cannot accept the majority’s suggestion that Rubin’s later comments to Mary Robles add in some material way to the evidence of a conspiratorial agreement. Although Rubin’s remarks to Robles offer general support for the theory that he put both women on notice that their income from the QDO would be “off the books,” the evidence again falls short of supporting any reasonable inference that there was a mutual understanding regarding Wagner’s future conduct with respect to her income tax returns. Moreover, the jury ultimately acquitted Rubin of aiding and assisting Robles in filing false income tax returns, apparently concluding that his conduct was insufficient to support a conviction under 26 U.S.C. § 7206(2).
In sum, I fear that the majority has failed to maintain the subtle, yet critical, distinction between a conspiracy to commit a crime and the aiding, assisting'or abetting of another in the commission of a crime. The majority’s affirmance of both convictions based on the evidence in this case renders the liability associated with aiding or assisting another virtually indistinguishable from the “preconcert and connivance” associated with an unlawful agreement among criminal co-conspirators. See Wardy, 111 F.2d at 107.
For all of the foregoing reasons, I would reverse Rubin’s conviction for conspiracy to file false income tax returns as having been based upon insufficient evidence. I would affirm the convictions on the other counts.