UNITED STATES of America v. Ernest T. WALDIN, Appellant
No. 12276
United States Court of Appeals Third Circuit
Decided Feb. 14, 1958
Rehearing Denied April 9, 1958
253 F.2d 551
BIGGS, C. J., and KALODNER and HASTIE, JJ., dissented.
Benjamin R. Donolow, Philadelphia, Pa., for appellant.
Alan J. Swotes, Asst. U. S. Atty., Philadelphia, Pa. (Harold K. Wood, U. S. Atty., Alan J. Swotes, Asst. U. S. Atty., Philadelphia, Pa., on the brief), for the United States.
Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges.
This is an appeal by a defendant who was convicted of violating
The defendant, at the time of the acts charged against him, was a deputy collector for the Bureau of Internal Revenue. His business was to collect unpaid taxes owed by taxpayers in the zone in Philadelphia to which he was assigned. By virtue of his position he had no authority to compromise or settle claims, nor did he have any authority to have anything to do with the accounts of taxpayers who resided outside his district. The proof adduced by the government against the defendant was that he conspired with persons unknown to induce a taxpayer, named Dr. Mogavero, to pay $20,000 in cash to the defendant and others in order to forestall the prosecution for income tax evasion which the doctor was given to understand was to be brought against him. Dr. Mogavero did not live in the district where defendant operated. It was not shown that either defendant or any of the persons alleged to be involved in the conspiracy had any authority to settle cases, stop prosecutions or furnish other of the alleged protective devices that the doctor was offered. But the evidence presented could lead to the conclusion that an object of the conspiracy was improperly to influence government officials who did have the capacity to do these things, and that at the very least the defendant himself was corrupted as a result of the illegal agreement. There was testimony, also, which the jury could believe, that the conspiracy reached the place where $20,000 in cash was actually put by the doctor into the defendant‘s hands just before the latter was apprehended.
On these facts may the conviction of the defendant be sustained?
Clause (4) is the one here concerned. The opening words of
That a conspiracy to stop prosecution for tax violation and to corrupt government employees is a conspiracy to defraud the United States we think no one would doubt. But can a revenue agent who has no official authority to start or stop a prosecution or, as a matter of fact, to do anything affecting a particular taxpayer‘s account, violate the section when he does what the jury could have found the defendant did here in concert with strangers totally outside the service? We think that it is enough that a defendant who is in fact a revenue officer shows his own corruption or intent to corrupt the service by participating in an unlawful project which concerns an internal revenue matter.
A similar argument is made that, notwithstanding actual authority, in order to give the phrase “officer or agent appointed or acting under the authority of any revenue law” full effect, it should be interpreted to mean that the agent at least must purport to act as a revenue officer at the time he enters into the conspiracy. To this there are two answers. One is that even without the appellant‘s gloss the words themselves are not two ways of saying the same thing. A man may be appointed and not be acting either because he has not qualified or because he is away on sick leave or something of the kind. The other answer is that when the Congress meant to require that the revenue officer be acting under purported authority or color of authority it said so as it did in clause (1) which deals with extortion.
The point here involved is not settled by authority. Judge Ganey, when this defendant was prosecuted under clause (10) of the section, thought that under this clause for an agent to be convicted he must have had authority, or at least color of authority, “to compromise, adjust or settle the taxpayer‘s violation or alleged violation of law.” United States v. Waldin, D.C.E.D.Pa.1951, 139 F.Supp. 156, 158. But the conduct described in that particular clause (10) is much more definite and narrow than the conduct proscribed in the clause which we are now considering.
Judge Lord, in an opinion rendered upon a motion to dismiss earlier in these proceedings (D.C.E.D.Pa.1956, 138 F.Supp. 791, 795-796), thought that the clause involved here was applicable to an agent whether he pretended to act in his capacity as agent or not and whether he made known his authority or purported authority to the taxpayer.
We think Judge Lord was right in holding this particular part of
But we think that the language describing conspiracy as forbidden conduct does not require any such qualifications and we do not think we should put it into the statute.
The point just discussed was squarely raised by counsel for the defendant in a requested instruction which said:
“If you find beyond a reasonable doubt that there was in existence a conspiracy and that the defendant was one of the conspirators, you must find that any acts of the defendant were done while he was acting under the authority of his office before you can find the defendant guilty as charged of violation of
26 U.S.C.A. Section 4047(e) (4) , and also you must find the defendant entered into the conspiracy while acting under the color of authority of his office.”
Judge Grim, who tried the case, denied this request and in denying defendant‘s motion for a new trial relied upon what Judge Lord had decided, 138 F.Supp. 791, in denying the motion to dismiss, D.C.E.D.Pa.1957, 149 F.Supp. 912.
We agree with Judges Lord and Grim so far as clause (4) is concerned. The view we take makes it immaterial whether Dr. Mogavero believed or did not believe that the defendant was an agent of the department acting within his authority, was an agent of the department acting outside his authority, or was an agent at all. It is sufficient that the defendant was in fact a revenue agent at the time of what the jury found was the misconduct.
The defendant makes a further contention that error was committed when the judge did not strike out evidence relating to the payment of the $20,000. When the defendant was tried under clause (10) before Judge Ganey, the money which was used in the transaction and a list of the serial numbers on the bills were in court and presented in evidence. In the meantime, the money had been returned to Dr. Mogavero and the list of serial numbers on the bills had been lost. Now defendant urges that if the money itself was not produced evidence concerning it should have been refused or stricken out.
At the trial there was testimony from three government agents about this money. They described going to the bank with Dr. Mogavero and getting the money, checking the amounts, making a list of the serial numbers, wrapping the currency in paper and giving the package to the doctor just a short time before the doctor handed it to the defendant. This testimony, it should be emphasized, came from the very persons who had done all these things with the money.
The only basis on which defendant‘s motion could be sustained is to allege that there is such a thing as a best evidence rule that requires in every law suit the best possible evidence to prove a given point. There is no such rule and all the modern authorities say so. The confusion got into the law when Baron Gilbert back in 1726 made some incautious statements broad enough to be the basis for misunderstanding of what “the best evidence rule” is. The rule itself is properly confined to writings and is so understood by all the well considered authorities.2 It may well have been that had the money and the list been produced the testimony might have been stronger, although the jury found it strong enough. There was no error by the trial judge in this.
The defendant also complained of the refusal of the judge to give a requested instruction on entrapment. There are two answers to this objection. One is that any suggestion of entrapment on the evidence is so thin as to be
The judgment of the district court will be affirmed.
HASTIE, Circuit Judge (dissenting).
I dissent because, in my view, correct application of the doctrine of res judicata to the circumstances of this prosecution requires that an acquittal be directed.
The wrongdoing charged was a scheme to mulct a delinquent taxpayer under pretense of protecting him from governmental action, in the course of which appellant, a deputy collector of the Bureau of Internal Revenue, is said to have solicited and accepted money from the taxpayer. This occurred in 1949. From year to year, from 1950 to 1955, the government obtained a series of five separate indictments in a persistent effort to punish appellant for this misconduct.
Appellant was first indicted, tried and convicted in 1950 on a charge of accepting money to compromise a complaint of violation of law. But, for reasons to be discussed later, the trial judge thereafter granted a defense motion for judgment of acquittal. The same transaction was the basis of a second indictment in 1952 for illegally accepting compensation, and a third indictment of rather similar tenor a year later. These indictments were dismissed in 1953 and 1954. The fourth indictment to be based on this transaction, this time for conspiracy to defeat income taxes, was handed down in 1955. Later in 1955 a fifth indictment initiated the present prosecution for conspiracy to defraud the United States. A jury found the accused guilty as charged. The court then considered and denied a defense motion for judgment of acquittal which urged that the specific ruling upon which the 1950 acquittal had been based was conclusive and required acquittal in this subsequent prosecution.
This brings us to the identification of the specific matter which was so decided in the first prosecution as to require an acquittal, but was relitigated and decided against the accused as an essential element of the crime charged in the present case. That question is, whether, in the 1949 transaction which was the common evidentiary basis of both prosecutions, the accused was “acting under the authority of any revenue law of the United States.” It was common to both prosecutions because the successive indictments were based on clauses (10) and (4), respectively, of the same subsection,
“(e) Other unlawful acts of revenue officers or agents. Every officer or agent appointed and acting under the authority of any revenue law of the United States—
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“(4) Who conspires or colludes with any other person to defraud the United States; or
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“(10) Who demands, or accepts, or attempts to collect, directly or indirectly, as payment or gift, or otherwise, any sum of money or other thing of value for the compromise, adjustment, or settlement of any charge or complaint for any violation or alleged violation of law, except as expressly authorized by law so to do—
shall be dismissed from office, shall be fined not less than $1,000 nor more than $5,000, and be imprisoned not less than six months nor more than three years.”
It will be observed that while offenses under clause (4) and clause (10) are different crimes, they, like all other offenses under
“[T]he defendant contends that before an agent of the Bureau of Internal Revenue can be found guilty under Sec. 4047(e) (10) of the Internal Revenue Code, the government must prove that at the time the agent demanded or accepted the money he must be acting under the authority of the revenue laws. Against the motion, the attorney for the government argues that the agent need not be acting under the authority of law at the critical time in order to convict him. In other words, he maintains that the words: ‘and acting under the authority of any revenue law of the United States’ in the code means, ‘and during his appointment‘. We cannot agree. The words of the section are plain. Before an agent can be convicted under it, he must have authority, or at least color of authority, to compromise, adjust or settle the taxpayer‘s violation or alleged violation of law.” United States v. Waldin, D.C.1951, 139 F.Supp. 156, 158.
Thus, the accused was acquitted on the specific ground that in the 1949 transaction he was not “acting under the authority of any revenue law of the United States.”
Six years later, when the same factual picture of this individual‘s role and status in that transaction was shown as an essential part of the government‘s case in the present prosecution, the accused urged the earlier ruling in his favor on the same point as a ground for acquittal. The court, a different judge sitting, again considered the matter on its merits and, disagreeing with the earlier ruling, sanctioned a conviction. The court said:
“In a previous case in this court defendant was charged with and convicted of a violation of subsection (10) of 26 U.S.C.A. former Sec. 4047 in accepting illegally the $20,000 which apparently the jury in the present case also found that he accepted. The trial judge in the previous case granted judgment of acquittal, United States v. Waldin, D.C.E.D.1951, 139 F.Supp. 156. That acquittal, however, does not protect defendant from a conviction in the present case. In the present case defendant is charged with a conspiracy rather than a substantive crime and an acquittal on a charge of a substantive crime does not preclude a prosecution of a conspiracy to commit the same substantive crime.” United States v. Waldin, 1957, 149 F.Supp. 912, 915.
The quoted language also seems essentially the position of the majority on this appeal. Its error, as I see it, is in treating a res judicata problem as if it were one of double jeopardy. The fact that the two contradictory rulings of the district court were made in prosecutions for different offenses, albeit based upon the same transaction, has force in preventing the second conviction from offending the constitutional guarantee against twice being put in jeopardy for the same offense. But the reach of res judicata in criminal cases is greater. Even though the successive prosecutions be for different crimes, a ruling favorable to the accused on the facts or the legal significance of a particular transaction in the one prosecution is conclusive in his favor on the same question concerning the same transaction in the second prosecution. See
The courts have repeatedly stated this doctrine of res judicata in criminal cases. There is the plain statement in Frank v. Mangum, 1915, 237 U.S. 309, 334, 35 S. Ct. 582, 590, 59 L.Ed. 969, that, in criminal cases as well as civil, “a question of fact or law distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties.” So, a ruling, whether right or wrong, that a particular short statute of limitations has barred prosecution for certain misconduct, is res judicata. United States v. Oppenheimer, 1916, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161. True, the well known recent application of res judicata to a prosecution in Sealfon v. United States, 1948, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180, involved an issue of fact. But the burden of the opinion is that res judicata applies to any issue actually decided, without any suggestion that it matters whether the litigants have contested a law point or a matter of evidence. So too, in this circuit, I understand the announced and considered rule to be broadly against the relitigation in a second prosecution of issues or matters of whatever sort actually decided in favor of the accused in an earlier prosecution. United States v. De Angelo, 3 Cir., 1943, 138 F.2d 466; United States v. McConnell, D.C.E.D.Pa.1926, 10 F.2d 977.
The prosecution, recognizing that it is in difficulty on this score, urges in its brief that so much of the judicially stated and repeatedly restated rule as applies to adjudication which has turned on a point of law is dictum in the cases and, therefore, that we should treat this question as one of first impression.1 Of course, what is ordinarily called a ruling of law on an issue of criminal liability is not a pronouncement of doctrine at large, but a decision as to the legal significance of what happened on a given occasion. And whether the actual dispute concerns the operative facts or the legal rule applicable to them, or both, res judicata, if applicable at all, comprehends the particular matter decided; in this case that the accused did not act under authority of any revenue law in the 1949 transaction. It does not matter whether the controversial factor which determined this ruling was the court‘s evaluation of the evidence or its interpretation of the controlling language of the statute. The important thing is that the court ruled that an essential element of the crime, as stated in the statute, had not been established. The existence of that same element of criminality may not later be proved against the accused to subject him to liability for another offense charged on the basis of the same transaction.
We should not be distressed that this rule may occasionally, perhaps this time, permit a wrongdoer to escape punishment. For it is the deliberate choice of our open society to forego easy and sure convictions of crime—such as the police state can guarantee—in order that the never absent risk of unduly harassing or otherwise oppressive action by government may be minimized. We should rather be concerned that judges not relax the procedural safeguards of our system whatever the record may suggest as to the demerits of the accused.
Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
PER CURIAM.
In a petition for rehearing the defendant raises for the first time the point that the statute of limitations bars this prosecution. There is good authority which holds that this objection comes too late when presented at this stage. Forthoffer v. Swope, 9 Cir., 1939, 103 F.2d 707; Pruett v. United States, 9 Cir., 1925, 3 F.2d 353; cf. United States v. Franklin, 7 Cir., 1951, 188 F.2d 182.
Regardless of timeliness, however, we think the contention has no merit.
“(a) Criminal prosecutions. No person shall be prosecuted, tried, or punished, for any of the various offenses arising under the internal revenue laws of the United States unless the indictment is found or the information instituted within three years next after the commission of the offense, except that the period of limitation shall be six years—
“(1) for offenses involving the defrauding or attempting to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner,”
Paragraph (1) covers the charge here involved as the opinion of the court, filed February 14, 1958, shows.
In accord with our conclusion is United States v. Witt, 2 Cir., 1954, 215 F.2d 580, which the defendant believes to be wrong but which we think is right. Grunewald v. United States, 1957, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, cited to us, was a prosecution under
The final question is whether
The petition for rehearing is hereby denied.
BIGGS, Chief Judge (dissenting).
The indictment charged the defendant-appellant with a conspiracy to violate
“(a) Criminal prosecutions. No person shall be prosecuted, tried, or punished, for any of the various offenses arising under the internal revenue laws of the United States unless the indictment is found or the information instituted within three years next after the commission of the offense, except that the period of limitation shall be six years—
“(1) for offenses involving the defrauding or attempting to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner,”
“(a) Criminal prosecutions. No person shall be prosecuted, tried, or punished, for any of the various offenses arising under the internal revenue laws of the United States unless the indictment is found or the information instituted within three years next after the commission of the offense, except that the period of limitation shall be five years for offenses enumerated in section 4047(e) (relating to unlawful acts of revenue officers or agents) and except that the period of limitation shall be six years— [Emphasis added.]
“(1) for offenses involving the defrauding or attempting to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner,
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“(b) Scope of limitations. Subsection (a) of this section shall apply to offenses whenever committed; except that it shall not apply to offenses the prosecution of which was barred before June 6, 1932.”
The per curiam opinion of this court concludes that the purpose of this amending section was to increase the period of limitations for those
The per curiam opinion, however, goes one step further and concludes that even if the applicable statute of limitations were five years, a defense based on the statute of limitations was waived by the defendant-appellant because he failed to plead or assert it specifically in bar. But statutes of limitations applicable to criminal offenses differ from statutes of limitations in civil actions. In civil actions statutes of limitations are deemed to be mere statutes of repose. In criminal actions statutes of limitations bar prosecution.
As to the issue of res judicata, a most important one, the views stated in Judge Hastie‘s dissent to the original opinion of this court filed February 14, 1958, seem unanswerable.
I am authorized to state that Judge KALODNER and Judge HASTIE join in this dissent.