Adams v. United States

• Decision Date: 07 March 1961
• Docket Number: No. 18153.,18153.
• Citation: 287 F.2d 701
• Parties: Z. A. ADAMS and Jean Adams, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

287 F.2d 701 (1961)

Z. A. ADAMS and Jean Adams, Appellants, v. UNITED STATES of America, Appellee.

No. 18153.

United States Court of Appeals Fifth Circuit.

March 7, 1961.

Joe J. Harrell and Jones & Harrell, Pensacola, Fla., for appellants.

Wilfred C. Varn, U. S. Atty., Tallahassee, Fla., for appellee.

Before TUTTLE, Chief Judge, and JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal raises the question whether a prior acquittal of a substantive charge insulates the defendant against a conviction for perjury committed on that trial.

Appellants, Z. A. and Jean Adams, husband and wife, were convicted of giving perjured testimony and suborning the perjury of others during an April 1958 trial of Z. A. on the charge of transporting and possessing moonshine whiskey. 26 U.S.C.A. §§ 5008(b) (1), 5642. The 1958 prosecution resulted in a mistrial from a hung jury. Shortly thereafter this perjury indictment was returned charging each with two counts of perjury, and together with two counts of suborning perjury. In January 1959 Z. A. was again tried on the moonshine charge. This time he was acquitted. The following December the trial of both Z. A. and Jean was held on the perjury indictment resulting in their conviction on all counts. It is this conviction which is here under consideration.¹

The perjury charges center around an alibi offered by Z. A. Adams in the first moonshine trial. He testified, as did his wife and several other witnesses, that he was at a birthday party in Georgia on the night the offense occurred.² If true, he could not have been in a car which was stopped on the same night by police officers at a far distant place in Florida. To substantiate this alibi both Z. A. and Jean testified that on their way home from the party they picked up George Adams (no kin) leaving a nearby night school and gave him a ride to his home.³ As stated this prosecution resulted in a mistrial.

The January 1959 moonshine trial followed. Again the alibi issue was raised and substantially the same evidence was presented to establish it, with one major exception. Mr. and Mrs. Ezell — the party givers — the two main supporting witnesses for the alibi during the first trial, see note 2, supra, reversed their testimony by denying the presence of either of the Appellants at their party. Called as witnesses by the Government they testified that their testimony on the first moonshine trial, now acknowledged to have been false, had been solicited by Z. A. and Jean. There was repeated, however, testimony of other eye witnesses to support the party alibi. There was also a slight variance as to George Adams. Z. A. and Jean testified, as in the prior proceedings, that George Adams had been given a ride home on the night in question. George, however, did not testify at all. At the conclusion of all the evidence the jury returned a verdict of not guilty.⁴

Appellants' claim here is that the verdict in the moonshine case was an adjudication in their favor on the alibi issue. Stated another way, the jury has upheld their testimony as true. Therefore, it is argued, under the familiar principles of res judicata or collateral estoppel the Government is precluded from relitigating this issue of whether Z. A. was at the Georgia Party.

Since confusion in analysis otherwise so readily results, it bears emphasis that this problem is distinct from that of constitutional double jeopardy. That relates to a second trial of the same offense. All acknowledge that liquor violation and perjury are distinctly separate crimes.

The doctrine of res judicata does apply to prevent relitigation of an issue in a criminal as well as a civil case. United States v. Oppenheimer, 1916, 242 U.S. 85, 87, 37 S.Ct. 68, 61 L.Ed. 161, 3 A.L.R. 516; United States v. De Angelo, 3 Cir., 1943, 138 F.2d 466, 468. And it cannot be questioned that the doctrine will, in a proper case, act to preclude a second prosecution based on facts which have been found favorable to a defendant in a previous trial. United States v. Adams, 1930, 281 U.S. 202, 50 S.Ct. 269, 74 L.Ed. 807. Its applicability is not affected by the existence of two separate and distinct crimes, although this does render the double jeopardy plea in bar, often raised in these cases, without merit. The question is not whether the defendant has been found innocent of the crime of which he is presently charged — perjury — for he clearly was not. Rather it is whether prosecution for this crime of perjury would require relitigation of specific fact issues which have already been judicially determined.

The precise problem, therefore, is to decipher exactly what facts have been, or should be deemed to have been, determined by the jury which acquitted Adams of the moonshine charge. This is, of course, made difficult by the traditional general charge to the jury and the general verdict which they render under it in a criminal case.

Two opposing policy considerations have weighed heavily in prior determinations of this problem. On the one hand the concern exists that allowing an acquittal to afford any sort of insulation for perjury will be giving defendants an uncontrollable license to testify falsely. The resulting detriment to the reliability of evidence and more so, to the stability of the judicial process, would only be enhanced by the obvious fact that the more persuasively flagrant the defendant's fabrication, the greater his chances of total exoneration. This completes a vicious circle since the successful acquittal on the substantive offense would immunize him as to the very falsehoods which brought it about. On the other hand some apprehension exists that allowing prosecution for perjury will actually give the state a second shot at the defendant for the same wrong. The mere fact, this argument continues, that one charge relates to the doing of an act and the other to a denial of having done it, or to affirmative proof that it was not so done, is not sufficient basis on which to make a distinction. This is particularly true where the same or substantially the same evidence is presented in both cases. Res Judicata in Successive Criminal Prosecutions, 24 Brooklyn L.Rev. 12 (1957). This, we see, approaches closely, whether acknowledged or not, an intuitive feeling akin to double jeopardy despite the fact that the two are distinct.

Before discussing the precedents, it is helpful to point out just what was involved in the moonshine trial. True, the prosecution had to prove that Z. A. was, or just recently had been, in the car. But to establish that it did not have to prove that he was not at the party. It was in no sense an element of the Government's case. It was, or might be, a persuasive evidentiary circumstance helpful to the defendant by affording him a specific means of disproving presence at the car by affirmatively proving presence elsewhere. On the other hand, the defendant's successful defense did not necessarily turn on his establishing his presence at the party. Under the Court's charge⁵ the jury, at most, merely found that Z. A. was not in the car. But that was not a finding that he was at the party. He may have been just a mile from the scene on the Florida highway, one hundred miles away, or safely home in bed. This, as we shall see, leads courts to consider as a "collateral issue" any fact which, if established on the perjury trial to have been false, is not inconsistent with the prior determination of innocence.

The Supreme Court has dealt with this problem in several cases, a leading one of which is Sealfon v. United States, 1948, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180. It involved several defendants who had been acquitted of the charge of conspiring to defraud the United States Government. Sealfon's connection with the conspiracy depended on a specific letter admittedly sent by him. Thereafter he and another of the former defendants were prosecuted and convicted for the substantive offense of publishing the false invoices which had been the basis of the alleged conspiracy. As Sealfon was an aider and abetter, his connection with the substantive offense again turned on whether this letter was sent pursuant to an agreement with the other defendant. To determine whether the questions of publishing the false invoices had been found in the defendants' favor the Court said it must look to "the facts adduced at each trial and the instructions under which the jury arrived at its verdict at the first trial." On setting the instructions and all the circumstances in a "practical frame," the Court found that the facts which were crucial to the prosecution's case in the second trial were "necessarily adjudicated" in the first "to be non-existent." A second attempt to "prove the agreement which at each trial was crucial to the prosecution's case" is a thing, the Court holds, which "the prosecution may not do." 332 U.S. at page 580, 68 S.Ct. at page 240.

Following Sealfon this Court in Yawn v. United States, 5 Cir., 1957, 244 F.2d 235, was presented with a similar set of circumstances. The defendant was first acquitted of a substantive offense, possession of a still. An indictment was brought one week later in which possession of the very same still at the very same time was alleged as one of the specific overt acts of a conspiracy to violate the federal liquor laws. We held the question of possession of the identical still to have been conclusively decided in the first trial and therefore the defendant's commission of this act could not properly be used as an overt "act to...