*2 HEALY, LEMMON, Before ORR and Judges. Judge. LEMMON, Circuit application principle is the chief in this case.
1. The Indictment
April
The indictment was returned on
ap-
1952. Count 1 recited that the
Deputy
pellant
Collector of
Francisco,
Internal Revenue in San
ifornia,
Cal-
appellant Cosgrove,
and that the
Francisco,
attorney
also of San
was the
persons
required
law to
Unit-
file
ed
estate tax returns in
States
connec-
Luigi Ferrari,
tion with the
estates
Fontana,
Paul
and Mario Ferrando.
Count contained
other al-
legations :
Ferrari, Fontana, and
died
Ferrando
August 2, 1946,
December
20, 1947, respectively,
April
and left
estates
connection with
taxable
required
returns were
law to be filed
December
on or before
March
July 20,
respectively.
Beginning
on November
continuously
filing
thereafter until
indictment,
spired with each other and with other
return;
namely,
unknown,
grand jury
persons
to fact” in an
tax
estate
stamped
stamped
to com-
and caused to be
United States
it,
it was
Ferrari’s
return to indicate that
towit:
mit offenses
*3
by
December
received
on
Collector
(a)
United States
To defraud the
2, 1947,
on
whereas it was so received
penalties
respect
returns
to certain
April 22,
or about
1949.
with the above
to be filed in connection
estates,
manner:
in the
3, 5,
charge that Cos-
Counts
and 7
on
not be filed
The three returns would
grove
wilfully
in,
“did
aid and assist
they
which
were
or
the dates on
before
procure,
and
and
counsel
advise
Doyle
they
due,
filed
were
and when
preparation
presentation”
and
of false
stamp
as hav-
Ferrari
return
would
and fraudulent
tax
estate
returns
ing
by
on De-
received
the Collector
been
aiding,
“by
above-named three decedents
1947;
2,
as
Fontana return
cember
advising”
assisting, procuring
Doyle
and
February 27,
having
on
been received
stamp
so as to
returns
indicate
1948;
return as hav-
and the Ferrando
they
respec-
were received on the
ing
July 20, 1948—the
on
been received
above,
tive fictitious dates
set
forth
respective remit-
their
last
two with
actually
whereas the returns were
re-
tances.
respective
specified
on
ceived
dates
1001, by
(b)
18 U.S.C.A.
1, supra,
To violate
§
in Count
as the dates on which
falsifying,
willfully”
“knowingly and
stamped.
covering
by
trick,
concealing
up
a
and
allege
4,
Doyle
6 and
Counts
fact,
device,
to-
and
a material
scheme
unlawfully
knowingly
“did
and
make
wit,
respective
on which the
dates
* *
*
provide
opportunity
and
an
filed,
by
respective
would be
and
returns
Cosgrove to defraud the United States
making false,
fraudulent
fictitious and
penalties” in
the three estate tax re-
representations as to the
and
statements
turns, by stamping
thereon,
dates
false
returns would be
on which the
dates
fully
“thereby
forth,
hereinbefore
set
would be
and on
the returns
filed
which
making
providing
opportunity
and
an
documents,
towit,
duly executed, “in
* * * Cosgrove
Tax Returns as
Estate
United States
States of
due
thereon
* *
*
forth,
hereinbefore set
$4,268.34,
$29,239.96,
amount of”
* * * knowing said
said defendants
$5,087.97
Ferrari, Fontana,
falsify, conceal and cover
documents
returns,
respec-
and Ferrando estate tax
device,
trick,
ma-
up
scheme
a
tively.
8,
addition,
Counts 6 and
false, ficti-
and to contain
terial
charge
provided
*
statements,
and fraudulent
tious
opportunity
with an
to defraud the Unit-
forth nine
count sets
This
penal-
States of interest as well as
ed
allegation
including
acts,
overt
ties,
Fontana and Ferrando
stamp
appellant
“did
turns,
respectively,
the amount of the
22,
April
stamped”, on
caused to be
being
interest
included
the two last
indicating
1949,
stamp
that Ferrari’s
given
figures
above.
on
the Collector
was received
return
Statement
2.
Case
Of
2,
averments
1947. Similar
December
respect
to the Fontana
made with
This is the second time that this case
alleged
stamped
return,
it is
first trial
has been tried. The
started on
(cid:127)
having
21, 1948,
September
been
on
25, 1952,
July 9,
and ended on
June
February
on
remittance
received
acquittals
resulted in
1952.
respect
1948;
Fer-
27,
2,
appellants
on Counts
and in a
April
stamped
return,
remaining
rando
disagreement on the
counts.
having
with remittance
received
been
.as
Septem-
trial commenced on
The second
15,
July
and ended on October
ber
guilty against
with verdicts of
forth that
2 sets
Count
wilfully
on Counts
knowingly
cover
^‘did
against Doyle on Counts
and 8.
trick,
device a material
scheme
&
false,
any
or
case,
or makes
fictitious
detailed
view of the
In our
represen-
unnecessary.
or
fraudulent statements
of facts is
statement
any
tations,
or
or uses
makes
concedes
knowing
writing
late,
or document
but
all three returns
filed
false,
fictitious
“delinquency
suggests
same to contain
his brief
entry,
or
or fraudulent statement
was debatable”.
of the Ferrari
return
$10,000
however,
more than
very
paragraph,
shall be fined not
In the
Cosgrove
next
imprisoned
five
more than
return
the Ferrari
admits that
years,
filing stamp
or both.”
of the Collector’s
“bears
indicating
it was received
office
foregoing
were the
two sections
*4
1947”,
2,
“The
while
filed December
filing
provisions
2
1 and
which Counts
under
bearing
stamp
was actu-
that date
brought, respectively.
on
It was
were
by deputy
ally placed
col-
on
return
those two counts that
22,
April
re-
1949.” The
lector
acquitted.
were
2, 1947.
turn was
Doyle
on December
due
3, 5,
under which
Counts
Ferrari
himself testified
convicted,
appellant
was
brought
De-
return
3793(b)(1),
upon 26
based
U.S.C.A. §
“incomplete”,
cember
is as
follows:
“should
latter thát it
that he advised the
preparation
or
“Assistance
completed
quickly
possible and
be
presentation. Any person
will-
who
paid”.
the tax
fully
in,
procures,
or
aids or assists
There is no
that all three
doubt
counsels,
preparation
or advises the
appel-
late,
turns were filed
and that the
under,
presentation
or
or in connec-
way
Doyle stamped
lant
them such a
arising under,
any
matter
tion
as to indicate
had been filed
laws,
false
internal
of a
revenue
on time.
return,
affidavit,
or
claim,
fraudulent
stamping
fact
But the
this false
document,
(whether
or
shall
dispositive
not
case.
of the
falsity
or not such
or fraud is
Applicable
knowledge
Statutes
or consent
person
required
authorized or
U.S.C.A.,
Section 371 of
Title
return,
affidavit,
present
such
conspiracy statute,
familiar
reads
claim,
document)
guilty of a
or
part as follows:
felony, and, upon
there-
conviction
persons conspire
“If two or more
$10,000,
of, be fined not more than
any
either
to commit
offense
imprisoned
not
than
for
more
or
States,
the United
to de-
or
together
both,
years,
five
or
any
fraud the United
or
prosecution.”
the costs
agency
any
thereof in
manner or
appellant Doyle was
un-
any
convicted
purpose, and one or more of
8, brought
der Counts
persons
under 26
any
such
act
do
to effect
4047(e) (5),
U.S.C.A.
object
which reads:
§
conspiracy,
each
$10,000
shall be fined more
not
than
acts
“Other
revenue
unlawful
imprisoned
or
not more than five
agents. Every
or
officer or
officers
years, or both.”
agent appointed
acting
under
any
authority
is the text of 18 U.S.C.
revenue law of
1001:
United
A.
States—
§
knowingly
conceals
scheme,
“Statements
“Whoever,
agency
jurisdiction
or covers
device material
or entries
any
willfully falsifies,
United States
matter within
department
generally
any trick,
fact,
any person to defraud the shall be dismissed
be fined not less than
States;
[******]
******
(5)
Who makes
*
**
opportunity
office,
$1,000
shall
nor
although
technically
imprisoned
$5,000,
“But
than
and be
more
acquittal,
moré
former
nor
than six months
not less
upon
years.”
all
it decided.”
conclusive
than three
Ap-
Principle
Conspiracy
4. The
Res Judicata
Issue
And
5. The
Of
Of
plies
Nearly
Aiding
Abetting
To
Cases
Criminal
And
Are “So
Of
To The De-
Identical” As To Give Rise
ago, it
decades
As late as four
Cos-
Res Judicata In Favor Of
fense Of
seriously
the Su
was
preme
contended before
grove.
States
Court of the United
3, 5,
seen,
and 7
not ex As we have
“does
Counts
the doctrine
charge
“did
except
modi
that the
cases
ist for criminal
procure,
Amendment,
wilfully
in,
that a
aid and
assist
the 5th
fied form of
person
preparation
subject
the same counsel and advise”
not be
shall
**
*
jeopardy
presentation
put
of a certain
twice
leading
tax)
(estate
of and fraudulent
return
case
limb”.
life or
* * *
decedent)
by aiding,
(name
Oppenheimer,
United States
advising
161, assisting,
procuring,
L.Ed.
37 S.Ct.
U.S.
*5
*
* *
* *
*
stamp
finally
to rest
the said
Holmes
laid
Mr. Justice
any
subject Return”,
lingering
ete.
this
doubts on
when he said:
appellee
inconsistent
has taken an
safeguard provided
the
“The
regarding
position
of the of-
the nature
gravest
the
Constitution
counts,
in
fense
the
above
give
impres-
has tended to
the
abuses
regarding
as well as
nature of the
the
apply
it
when
did not
sion that
terms,
laid.
statute under which
the counts
principle
was
other
there
no
argues
brief,
In one section of its
But
5th Amendment
that could.
the
“An
commit a
away with
was not intended to do
substantive offense
a later
is no bar to
* * *
civil law is a fundamen-
what
the
aiding
prosecution
* *
*
justice
principle
tal
abetting the
of the substan-
commission
order,
man
ac-
when a
has been
once
brief,
tive offense.” Later in its
ever,
how-
merits,
quitted
the
the
to enable
appellee
contends
government
prosecute
to
(Emphasis supplied.)
him sec-
principal,
was indicted “as a
not as an
1
ond time.”
abettor”,
later,
aider and
and still
appellee flatly
26
declares that
U.S.C.A.
plea of
distinction between a
3793(b)
(1),
the three
under which
§
jeopardy
principle
former
brought,
counts were
“is not an
carefully
judicata should be
observed.
Finally,
aider and abettor
statute”.
out,
appellee correctly points
for
As the
argument
jury,
before the
counsel for
“identity”
jeopardy
mer
involves an
argued
appellee
un-
that the statute
estoppel”,
offenses,
while
“collateral
der which the
in-
“components”
judicata,
one of the
commonly
“is
dicted
referred to
prior
“is conclusive be
(sic)
‘aid
*
or abettor’
* *
statute”.
only
parties
as to
tween
actually litigated and determined
matters
by
Regardless
appellee’s
inconsist-
judgment”.
contentions, however, both the stat-
ent
3, 5,
7, brought
principle
latter
that was
and Counts
there-
It was
ute
under,
Supreme
“aid”, “assist”,
in United
applied
Court
contain
words
Adams,
202, 205,
“counsel”,
1930,
“procure”,
281 U.S.
and “advise”.
v.
States
269,
807,
expert
requires
L.Ed.
it said:
no
in semantics
74
when
to dis-
50 S.Ct.
1915,
Darnell, 1950,
Cal.App.2d
Mangum,
630,
ple
237
Frank v.
97
also
v.
See
1.
172; People
333-334,
636,
Mora,
309,
582,
1953,
35
59 L.Ed.
P.2d
v.
S.Ct.
218
U.S.
896,
Angelo,
Cal.App.2d
969;
States
3
United
v. De
120
151
finding
identity
from a
did
substan-
that the
partial
eern the
agree
other, or,”
etc. Would
with each
equivalence
words
tial
of those
appellee
permitted two
therefore
words “aid
abet”.
cherry?
bites
attempt
establish
In its
therefore,
here,
The crucial
(1), supra, “is not
3793(b)
Section
ear-
whether the
issue
appellee
statute”,
aider and abettor
aiding
abetting is-
lier trial and the
argues
purpose
to reach
“Its
involving Cosgrove here,
“so
sue
prepare re
taxpayers who
advisers
nearly
prevent a retrial”.
identical as to
Borgis,
citing
7
turns”,
States
Cir., 1950,
States,
Williams v. United
5
277,
274,
Cir., 1950,
and United
182 F.2d
644,
affirmed, 1951,
660,
341
179 F.2d
1939,
Cir.,
F.2d
Kelley,
105
States v.
U.S.
aids, in- abets, counsels, Part Volume of the same commission, duces, procures made: its statement principal.’ is a “One is an ‘aider abettor’ if he to sus- the commission crime sufficient evidence is “The n partner an last active in the intent on such tain the verdict element, and was the crime’s basic The fact counts. mentioned degree personally or collu- the least of concert these parties place to an ille- present sion between the where and at the gal act of one liquor manufac- transaction makes time when the Lowry, Pa. nec- Com. It is not act all. v. immaterial. tured is abets 98 A.2d 736.” essary aids and one who a crime shall commission United Tobacco Co. v. American present is committed when crime States, Cir., 147 F.2d under conviction to sustain a Court said: necessarily found section. agreement is neces- “No formal against appellants’ contention sary unlawful constitute an unlawful en- had abandoned always, spiracy. crime Almost Having voluntarily terprise. enter- inference, deduced is a matter undertaking and aided ed into the accused, persons from the acts execution, they are its assisted pursuance of an which are done in responsible consequences.” for the purpose. (Cases ' apparent criminal supplied.) (Emphasis agreement may cited.) coincidence, By case entitled another . action, all the shown a concert Cir., Johnson working together parties under- likewise, brings out 195 F.2d design single standing^, with a similarity between close accomplishment of a common aiding, abetting. ” the Court There (Case cited.) purpose. following language: used the *7 affirming In the American Tobacco Co. “Generally speaking, to find one Supreme case, supra, Court, in 328 ground guilty principal on a as 781, 809-810, U.S. 66 S.Ct. and abetter an aider that he was 90 L.Ed. said: proven in the he shared must be conspiracy proved, “Where the principal and criminal intent here, from the evidence of the ac- community a un- there must of parties taken in tion concert act purpose time the at the lawful it, convincing to it is all the more sup- (Emphasis is committed.” proof of an intent to exercise the plied.) power acquired through of exclusion Furthermore, definite affini- is a there conspiracy. The com- essential conspiracy concept ty between conspiracy bination violation concepts of hand, concert one of the Sherman Act be found in abetting aiding action and dealings a course of or other circum- Phrases, page In 8 Words other. any exchange stances as well as in following: we find (Case cited.) words. Where the circumstances are must based such as to war- of action “Concert jury finding rant a an ille- commit the con- upon to a spirators unity purpose had a and abets gal act, aids one who design a common must .share understand- crime in commission meeting ing, perpe- or a of minds in actual intent of un- in criminal arrangement, lawful Whited v. act. conclusion criminal trator a Commonwealth, 6 S.E.2d established is (Emphasis justified.,” supplied.) 528.” Va. 10,000,000 Finally, question has been entire he sold which to Sealfon Court, put beyond syrup, form of vanilla cavil Sealfon States, 1948, chiefly non-exempt consumers, 332 sold to v. United in Sealfon 578-580, Company. 92 L.Ed. National 68 S.Ct. Biscuit Sealfon U.S. Greenberg briefly payments first made The in that case were check, gave but later checks to the truck- these: ers, cashed, which the latter deducted against were returned Two indictments trucking Greenberg. fees, paid their including group others, a Sealfon and Greenberg guilty. simply pleaded jury as “Green- referred to hereinafter berg”. charged conspiracy returned a to de- verdict of not as to One govern- Sealfon. its Thereafter trial was had on fraud the United States of a again conserving Greenberg the other pleaded guilty, and ra- indictment. mental tioning sugar by presenting function proceeded in- false and the trial against representations theory making Sealfon on that he voices and Greenberg aided and abetted the effect cer- com- to a ration board to sugar products mission of were made the substantive offense. tain sales of agencies. exempt other indict- invoices, The false the letter Greenberg ment Sealfon Greenberg, essentially Sealfon to the substantive commission testimony again same introduced uttering publishing as addition, Sealfon. it was (cid:127)true invoices. the false brought out on cross-examination that unsuccessfully sought Sealfon had indictment tried placement first, shown: certificates from facts were ration and the sugar syrups board for contained sold Greenberg, syrup, who manufactured Navy plants. at the Yard and defense brokerage approached for a a salesman Greenberg gave testimony from which concern, syrup. vanilla The sales- to sell could conclude that Sealfon was negotiated Sealfon, sales to man some moving factor in the scheme There- who did a wholesale business. that was constructed around Sealfon’s Greenberg salesman to after asked the letter, and that Sealfon was familiar with showing get from Sealfon a list Greenberg’s in- intention submit false sales, places made and told Sealfon where Greenberg voices. further testified if were made the salesman that sales $500,000 Sealfon received cash under Greenberg exempt agencies, could sell agreement, a rebate of two cents larger quantities. The to Sealfon sugar pound replacement on all *8 Sealfon, and some salesman so informed Greenberg Navy Yard in- received on latter wrote to Green- time the thereafter voices, whether or syrup sold was used not it berg saying, present “At some the time Sealfon. to being syrups sold at the of our are Brooklyn Navy jury Yard” and various de- This time the a returned verdict plants. guilty against sell some Sealfon did Sealfon, fense who to moved vending company syrup which quash to a the second the indictment on Navy ground, alia, Yard but it judicata. had at the machines inter He syrup objected and no sales were was not vanilla also to the introduction of the Navy Yard as such. made evidence adduced at the first trial. presented it, Greenberg With false these facts before the Court thereafter board, purporting said: ration the invoices to delivery to to Sealfon show sales long recognized has “It been that Navy letter was Sealfon’s Yard. the the commission of the substantive board. shown to never conspiracy and a to commit separate invoices, it are distinct basis offenses. On (Case cited.) Thus, replacement with Greenberg certifi- some ex- received prosecuted sugar, ceptions, may pounds 21,000,000 one cates theory But res ed States. The that under crimes.. Ibid. both given jury may prose- a instructions be a defense in. second /the doctrine, might petitioner applies to cution. have found that n Greenberg yet proceedings conspired with criminal as civil as well - party (cases'cited-.)-and operates he refused to infer that was a conspiracy. to the over-all clude those matters issue-which though the the verdict determined- “The instructions under which the offenses be different. rendered, however, verdict was must practical only question in a be set frame and view- in this “Thus the eye jury’s ed with to all the circum- ease is verdict whether proceedings. conspiracy trial stances We look was a determi- light only petitioner to them nation for such favorable by shed issues determined facts essential cqnviction (Case cited.) verdict. Petitioner offense. That de- substantive only pends upon was the trial under facts adduced at each one on trial There was instructions under indictment. -the. directly jury no him which the arrived its evidence to connect at .verdict anyone Greenberg. with the first trial.” other than agreement Only if an with at least case, appellee In the insists instant Greenberg by jury inferred and in- “on the basis of the evidence petitioner could And be convicted. trial, structions first at the it cannot be keyed only in the instruction determined issues what were decided particular jury case the facts of the the verdict and on count 1.” petitioner was told must be ac- suggested spate possi- There is also a .of quitted if there was- reasonable have, jury might bilities as to what “the conspired doubt he Green- thought”, finally, and, we find some- berg. jury Nowhere was told startling what .comment' ’ to return a verdict “may only on Count 1 show that the petitioner be found that must was a speak did not' real its convictions on the' inyolving party to a count, compromised first have or. ' only Greenberg Baron but the Cor- made a mistake”! poration this, well. Viewed t argumen type This was made setting, .the verdict determina- present appellee case Sealfon petitioner, concededly tion that who 575, 68 [332 U.S. S.Ct. and was 239] letter, wrote and sent did not do disposed thus Court: agreement pursuant so to an argues “Respondent that the basis Greenberg to defraud.” jury’s verdict .cannot might passing, we observe that certainty, known with the con- the instant case we not troubled spiracy predicated trial was theory conspiracy” of an “over-all theory petitioner [Sealfon] embracing conspiracy. a smaller Here party to an over-all ul- the defendants two' trials *9 timately involving .petitioner, Green- identical. berg, Corporation and Baron Reversing of conviction pleaded [which had nolo contendere indictment, Sealfon on the second at the first trial]. Thus it is said' which, seen, proceed- trial on as we have that the verdict established with cer- theory ed on the that he aided and tainty abet- only petitioner that not was Greenberg ted in the commission of conspiracy, member of such offense, substantive prosecution Court that therefore the was said in conclusion: showing not foreclosed from petitioner second trial that interpreted, wrote “So the earlier ver- pursuant agreement the letter to an precludes diet a later conviction of Greenberg with to defraud-the .Unitr.- the substantive offense. The basic
155 Substantially From 8 Are identical. trial were each Different Charged 1 He two In Those Counts the records As we read Rely Upon Cannot Res trials, petitioner be convicted could Defense proof Judicata only that on either pursuant to an letter he wrote the agreement legal prin- We need not labor the Greenberg. Under ciples applicable on to Counts introduced, petitioner the evidence appellant Doyle which was convicted. abetted Green- have aided charged could providing him “an These Indeed, way. berg in no other opportunity” Cosgrove to defraud the urge he could. spondent not does penalties, United States of prosecutor’s together Thus core interest, connection the same: in each case case was returns, supra. with the three estate tax sur- letter, and circumstances the- none these counts is there rounding inferred and to be allegation Cosgrove appellant There it, false invoices. and the opportunity availed himself the venal course, was, evidence additional provided by Doyle. thus There was adding detail trial on the second . presented therefore no of con- leading up to the the circumstances aiding spiracy, abetting, concert of par- agreement, alleged petitioner’s action, paraphrase like. To may therein, he ticipation and what poet Kipling, the crimes with which got this at most it. But out of have Doyle was were those that could likely only it more made evidence by one”, not committed “one “two into petitioner had entered by two”. agreement. was a second corrupt Doyle also that “the contends fourth agreement prove attempt charging count of said indictment crucial trial was at each which false date in with the connection estate prosecution’s here] case [as Luigi Ferrari is the same false date adjudicated necessarily was and estate tax return that sub- non-exist- trial to be in the former ject matter of the second count said prosecution ent. That upon appellant indictment acquitted.” which the supplied.) (Emphasis do.” “agreement” too, Here, between glance counts, however, two A at the After a was “crucial”. the defendants study Doyle appellant sim- discloses that ilarly record, arewe convinced charges Count error. are suf- the instant case facts in that the knowingly appellants both “did wil- ficiently to make those of Sealfon close to by trick, fully up and de- cover scheme controlling here, decision of that the law fact” in Ferrari vice a material es- is con- so far return, while, just have tate seen, we tax cerned. charges Doyle provid- Count “opportunity” to de- an additional There is reason ed an why prosecution Count 3 is United States the Ferrari barred un fraud the allegations judicata. again, the two Count matter. Here doctrine der the Cosgrove assisted, clearly alleges different: the former sets counsel actually ed, etc., both suc- to datemark Ferrari forth that falsely. covering fact, a material return Count on ceeded tax estate acquitted, appellants were al 4 avers that alone while Count simply which both leged opportunity provided did datemarking defrauding same Ferrari with- *10 Cosgrove Although alleging different statutes whether or not are out return. charged advantage opportunity. involved, of that the offenses Counts took essentially the same. and 3 Doyle Finally, appellant complains the Alleged regarding given Against briefly The the instructions 6. Since Offenses Doyle by appellant Appellant This In Counts 6 and below. the Court has disregarded dating. 18(d), pro- counts, ac- our Rule There were six other cusing vides, alia, separately. the al- inter “When error the two men Three leged charge court, charged Cosgrove the of is to the of the these with feloni- ously aiding specification part abetting Doyle out the in the shall set predating charged verbis, ferred to whether it be of the totidem returns. Three Doyle given feloniously affording in instructions inor instructions with Cos- grove refused, together grounds opportunity the the with each instance to objections urged government trial.” Never- of the by theless, Doyle’s (Doyle’s) predating ob- his we considered the re- have jections instructions, charged find turns. to the- Thus in the transactions wholly complemented them merit. two men without each other. They opposite were like the faces of the 7. Conclusion same shield. Cosgrove’s appellant In view of the 1 and acquitted on Counts former On the first trial both were against respect him on Counts on counts one two. reversed, application jury accusing separately 7 is because counts them judicata. disagreed. jury res present of the doctrine of On the trial guilty found of the the two men on each however, doctrine, suc- cannot be separately counts them. levelled appel- cessfully behalf invoked on us before is whether charged lant, Doyle, con- since Count charge prior acquittal on alleged joint spiracy action and Count regards res or both either by appellants, while Counts the two charges respect separate men in offenses dealt with substantive and 8 they severally of which were found judg- by Doyle alone. The committed by jury. My second associates are against Doyle counts is af- said ment opinion respects Cosgrove the that as firmed. prior acquittal operated verdict of as res Judge judicata. (concurring I HEALY, With this determination agree. dissenting part). they respects part But hold that as Doyle legal principle applica- is not simple unusually on its case This is an obliged ble. I With this view am to dis- estate tax re- involves facts. agree. by appellant prepared turns Cosgrove filed these three of clients. present trial can not case remittances, returns, office with majority fragmented rationally as the periods Collector at Internal Revenue parts Its constituent undertake to do. varying months seventeen seven separate permit do not consideration. they were due un- after date months jury Manifestly when the convicted both statute. In each revenue der the relevant men, had the nec- it found that deputy Doyle, collec- instance agreed essary intent had criminal having stamped tor, the returns been done, Doyle acts be overt as of the date with remittances received likewise had a criminal money penalty A is ex- due. were agreed intent and had filing late for the the statute acted do the acts. Thus the determina- overt returns. such necessarily in- tion second single found the determination of the the consistent with A indictment impossible accusing first, although grand jury it is to ascer- both inconsistency predicated lies with the afore- tain whether of offenses Cosgrove, In count one or of conviction activities. mentioned only charged jointly conspir- view of both. This seems to me the two government harmony one in with the acy to defraud holding in the two Sealfon penalties. Count them Court’s case. As covering Sealfon, feloniously judi- I read doctrine of jointly with nullify filing by pre- trick device of cata serves to conviction or late *11 filing ceal device the late of fact scheme and on determinations victions based Cosgrove jury prior returns. The contrary of a of the determination to the agreement my opinion, were unable Accordingly, nei- to reach an jury. in charges respect to the substantive can stand. here ther conviction against pertaining the men to the three Rehearing On anoth- returns. second trial before a Cosgrove Doyle jury found er and were Judge. charges sep- guilty HEALY, of these substantive against arately them. This leveled court year this court of a In a of decision reversed as for the reason to against involving charges ago, acquittal his former rendered the Doyle, Paul J. V. [Lloyd charges against judicata. But him res against conviction as Doyle toas was held not to as was reversed adjudication. constitute an affirmed, Doyle one member dissenting. Doyle petitioned the court government not did ask rehearing petition was for a freeing rehearing respect of the original granted, opin- of the author Cosgrove, nor did it seek certiorari. dissenting. pertaining ion as case regards ruling Accordingly Cos- reargued Doyle to has now been grove stands as the law of the case and again before us for decision. present purposes we treat it for as con trolling. opinion We that the rul opinion original nature In the ing requires a reversal the conviction fully developed history case were of the Doyle in the case of as well. quoted, so pertinent statutes and the again unnecessary plow opinion, far as so In our former Enough say given only length. great concerned, was at was attention field indictment, with con- letter of the men were to the barren two government part spiracy in material its and even letter fil- with the The evidence in connection late taken into account. ling practicalities returns of the situation of estate tax cases and the ignored. separate an treatment affords estates. Such problem inadequate approach Internal office official of Revenue judicata. Compare with which the returns were filed Sealfon responsible attorney 332 U.S. S.Ct. filing jury assump them. an earlier On trial a 180.1 The court’s 92 L.Ed. decision, respect indulged tion, purposes had found the men not vacuum, operated of the of the two counts indictment in a was that charging de- them with on the whereas the record made trial jointly gov fraud and to cover thrust of shows that the whole thought only question 1. Sealfon v. United States is most nearly jury’s recent well as the most an case before it was whether the alogous subject authority verdict trial was a de- judicata petitioner in criminal cases. There the termination favorable to the Court noted that the commission of the the facts to conviction essential depends,” substantive offense and a substantive offense. “This said separate Court, “upon commit it are and distinct of adduced at fenses, thus, exceptions, with some trial each which the instructions under may prosecuted one “But,” for both crimes. arrived its verdict at Court, said the “res the first trial.” The Court further ob- prosecution. be a in a defense second served that “The instructions under applies rendered, doctrine to criminal as well verdict was how- proceedings [citing ever, practical as civil cases] and must set in frame operates eye to conclude those matters is and viewed with an to all the circum- though proceedings.” sue [Emphasis which the verdict determined stances supplied.] the offenses be different.” The Court *12 argument was evidence ernmeiit’s OVERBY, Acting Secretary A. N. establishing-the proposition that toward what he did was done Treasury, Appellant, through prear rangement by con In UNITED STATES men.2 action between the two FIDELITY AND certed GUARANTY COMPANY and The First mutuality deed, of action and concert Auburn, Appellees. National Bank of implicit
purpose in the substantive are No. 15419. convicted, charges no than in less those which Appeals States Court of guilty. And it likewise was found is Fifth Circuit. clear from the evidence that June avail himself did in fact undertake to alleged opportunity Doyle afforded him. have The record on the first trial shows that Cosgrove and
the two counts of which Doyle acquitted
were then contained
every charged against element them counts. substantive The basic
in the two trials were identical. If the prior verdict of men two judicata Cosgrove, was
was res as to as to as well. Our holding contrary reason; .affronts good and we feel that what is not sense ought perpetuated not be as law. accordingly
The conviction of
reversed. LEMMON, Judge (dissent-
ing). For the reasons stated me
original majority opinion, I dissent from present opinion rehearing.
I do not believe that the distinction be- crime,
tween to commit a hand, the one and a unilateral offer of an
opportunity to another to commit that
crime, hand, oh the other rea- “affronts
son”. salutary distinc- full law is required ob- the courts
tions that distinction I believe
serve. of them. is one judgment should be affirmed as to The. Doyle. position government’s jury, on the sec- he 2. The said that order to avoid abundantly procured trial was made ond clear “Mr. Mr. opening Doyle” In1 having thereof. state- outset to date the returns n beenfiled as attorney, of the United States out- ment the date were due. enlightenment lining for the the issues