Forman v. United States, 43

• Decision Date: 23 February 1960
• Docket Number: No. 43,43
• Parties: William R. FORMAN, Petitioner, v. UNITED STATES
• Court: U.S. Supreme Court

361 U.S. 416

80 S.Ct. 481

4 L.Ed.2d 412

William R. FORMAN, Petitioner,

v UNITED STATES.

No. 43.

Argued Nov. 19, 1959.

Decided Feb. 23, 1960.

Solomon J. Bischoff, Portland, Or., for petitioner.

Abbott M. Sellers, Washington, D.C., for respondent.

Mr. Justice CLARK delivered the opinion of the Court.

In this criminal conspiracy case, petitioner raises questions of double jeopardy. Petitioner and one Seijas, his former partner in the pinball business, were convicted¹ of conspiracy to commit the offense of willfully attempting to evade the individual income taxes of Seijas and his wife, in violation of § 145(b) of the Internal Revenue Code of 1939,² and of furnishing false books, records, and financial statements to officers and employees of the Treasury Department for the purpose of concealing the true income tax liabilities of Seijas and his wife, in violation of 18 U.S.C. § 1001, 18 U.S.C.A. § 1001.³ The trial was prior to our decision in Grunewald v. United States, 1957, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931. The petitioner requested, and the trial judge included in his charge, language similar to that given in the charge in the Grunewald prosecution directing that petitioner should be acquitted unless the jury found that the partners entered into a subsidiary conspiracy, continuing to within six years of the indictment, to conceal their conspiracy to attempt to evade Seijas' and his wife's taxes. At the time of the appeal, our Grunewald opinion had come down. Citing Grunewald, the Court of Appeals reversed petitioner's conviction and remanded the case with instructions to enter a judgment of acquittal. 259 F.2d 128. On rehearing, however, the Court of Appeals decided that 'the case might have been tried' on an 'alternative theory,' namely, that 'certain of the overt acts listed in the indictment and charged to have occurred in 1948, 1951 and 1952, involving false statements, could well have been in furtherance of and during a conspiracy having as its objective not the concealment of the conspiractors' conspiracy but tax evasion.' 261 F.2d 181, 183. It modified its original order for an acquittal and entered one directing a new trial. Petitioner then contended that having once ordered his acquittal, the Court of Appeals, by directing a new trial, violated the command of the Fifth Amendment that no person shall 'be subject for the same offence to be twice put in jeopardy of life or limb.' Petitioner's motion for rehearing was denied. 264 F.2d 955. We granted certiorari. 359 U.S. 982, 79 S.Ct. 942, 3 L.Ed.2d 932. We affirm the order directing a new trial.

The facts are detailed in the original opinion of the Court of Appeals, 259 F.2d 128, and it is sufficient here merely to summarize them. In 1941 petitioner and Seijas, a lawyer, formed a partnership to engage in the operation of pinball machines in Kitsap County, Washington. Receipts, less expenses, from the individual machines, were to be divided equally between the partners and the location owners. Beginning in 1942 and continuing until December 1945, however, the partners robbed the machines by extracting 'holdout' money from those located at the more profitable locations. These sums, without being split with the location owners, were divided between the partners. None of these amounts were entered on the books of the partnership, nor were they included in its tax returns. Seijas maintained diaries and kept a record of the amount of 'holdout' income that he received, but he paid no tax on it. During this period, tax returns omitting the 'holdout' income were filed each year. The Court of Appeals found that 'there was abundant proof' of petitioner's participation in a conspiracy to 'evade Seijas' income taxes for the years 1942 through 1945' through concealment of the 'holdout' income during that period. It also found that 'numerous false statements' were made by both Forman and Seijas in furtherance of this conspiracy and within the six-year period immediately prior to the indictment. (9 Cir., 259 F.2d 130.) The record shows, as the Court of Appeals indicated, that the concealment of the 'holdout' income continued until soon before the indictment, at which time Seijas turned over to the agents his diaries covering the receipt of this income for the years 1942—1945. The Court of Appeals, on the original submission, however, found that the case was submitted to the jury on the theory of Grunewald as expounded in 2 Cir., 233 F.2d 556, namely, that a subsidiary conspiracy to conceal the main conspiracy to attempt to evade Seijas' tax may be implied from circumstantial evidence showing that the latter conspiracy was kept a secret. This subsidiary conspiracy would make the prosecution timely under the applicable statute of limitations. But the Court of Appeals pointed out that the reversal of that case by this Court soon after the trial of petitioner gave it 'an advantage * * * that the trial court did not have' and required the conviction to be reversed and the case remanded 'with directions to enter judgment for the appellant' Forman.

On rehearing,⁴ as here, the Government contended that the essence of the conspiracy charged in the indictment filed November 19, 1953, was to evade the tax on the 'holdout' income and that at least five overt acts were committed within six years of the return of the indictment for the purpose of furthering that conspiracy to eavde. Contrary to what the trial court found, the Government said that the conspiracy did not end with the filing of the false income tax returns in the years 1943 through 1946, but embraced the subsequent efforts, made during the years 1947 through 1952, to evade those taxes. The only flaw in the record to the contrary, it claimed, was the erroneous 'subsidiary conspiracy' instruction, which it now points out was injected therein by the petitioner himself. The Government concluded that the interests of justice required the entry of an order directing a new trial rather than a judgment of acquittal. Although finding that the Government conceded 'that the case was submitted to the jury on an impermissible theory,' the Court of Appeals read the indictment as alleging that the conspiracy was one "to violate * * * § 145(b) of the Internal Revenue Code * * * by furnishing officers and employees of the Revenue Department false books and records and false financial statements, and by making false statements to such officers and employees, for the purpose of concealing from the Treasury Department their share of the unreported (holdout) income * * * and for the purpose of concealing * * * the true income tax liability of Amador A. Seijas." 261 F.2d at page 182. It held that 'the conspiracy continued past the filing of the returns' and 'that certain of the overt acts listed in the indictment and charged to have occurred in 1948, 1951 and 1952, involving false statements, could well have been in furtherance of and during a conspiracy having as its objective not the concealment of the conspirators' conspiracy but tax evasion.' Id., at page 183. It, therefore, modified its opinion 'so as to provide that the judgment is reversed and the cause remanded for a new trial.' Ibid. The petitioner then raised his plea of former jeopardy, which is the basis of his petition here. He says that the trial court correctly found that the conspiracy ended with the filing of the last false income tax return in 1946. Since there was no direct evidence of the existence of a subsidiary conspiracy to conceal the crime of attempting to evade, the trial court he concludes, should, have sustained his motion to acquit on that ground. When the Court of Appeals held that the trial court erred in failing to grant the motion, petitioner argues that it gave him a vested right to an acquittal, which matured at the time he so moved in the trial court. A new trial, he contends, would therefore place him in double jeopardy.⁵

The Government now says that through 'inadvertence' it allowed the case to be submitted to the jury on the 'impermissible theory' condemned in our Grunewald opinion, 353 U.S. at pages 399 406, 77 S.Ct. at pages 971—974; and that the trial judge was led into error by the request of the petitioner for an instruction on the 'subsidiary conspiracy' theory, which error was compounded by the failure of the Government to object thereto. This resulted, it maintains, in a Grunewald instruction being saddled onto a correct charge. In view of this complication, it concludes that the jury might well have based its conviction on either theory, and a new trial was therefore appropriate and would not place petitioner in double jeopardy.

I.

We believe that there was a misconstruction of the scope of the alleged conspiracy and its duration in both Grunewald and the present case. In Grunewald the indictment charged a conspiracy 'to fix' criminal tax cases and to conceal the acts of the conspirators. That case was submitted to the jury on the theory that 'the indictment alleges that the conspiracy comprehended within it a conspiracy to conceal the true facts from investigation * * *.' Did the conspiracy end when the 'no prosecution' rulings were issued, the Court charged, 'or was a part of the conspiracy a continuing agreement to conceal the acts done pursuant thereto?' The effect of the charge was that if there was such a continuing agreement, then the prosecution was timely. It appeared to us that the case should have been submitted to the jury on the theory that the central object of the conspiracy was not merely to obtain the 'no prosecution' rulings, but rather to immunize the taxpayers completely from prosecution for tax evasion. The evidence supported such a theory. We said, however, that, since this theory was not adequately submitted to the jury, the case should be remanded for a new trial rather than affirmed.

In petitioner's case the indictment charged him and Seijas with conspiracy, extending from 1942 to 1953, to...