Cosgrove v. United States

• Citation: 224 F.2d 146
• Decision Date: 22 June 1955
• Docket Number: No. 13626.,13626.
• Parties: Lloyd J. COSGROVE and Paul V. Doyle, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

224 F.2d 146 (1954)

Lloyd J. COSGROVE and Paul V. Doyle, Appellants, v. UNITED STATES of America, Appellee.

No. 13626.

United States Court of Appeals Ninth Circuit.

June 18, 1954.

On Rehearing June 22, 1955.

Joseph L. Alioto, James E. Burns, William C. Danielson, San Francisco, Cal., for appellants.

Warren Olney, III, Asst. Atty. Gen., Rex A. Collings, Jr., Sp. Asst. to Atty. Gen., Washington, D. C., Lloyd H. Burke, U. S. Atty., John Lockley, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before HEALY, ORR and LEMMON, Circuit Judges.

LEMMON, Circuit Judge.

The application of the principle of res judicata is the chief question in this case.

1. The Indictment

The indictment was returned on April 15, 1952. Count I recited that the appellant Doyle was a Deputy Collector of Internal Revenue in San Francisco, California, and that the appellant Cosgrove, also of San Francisco, was the attorney for persons required by law to file United States estate tax returns in connection with the estates of Luigi Ferrari, Paul Fontana, and Mario Ferrando. Count 1 contained the following other allegations:

Ferrari, Fontana, and Ferrando died on August 2, 1946, December 1, 1946, and April 20, 1947, respectively, and left taxable estates in connection with which returns were required by law to be filed on or before December 2, 1947, March 1, 1948, and July 20, 1948, respectively.

Beginning on November 15, 1947, and continuously thereafter until the filing of the indictment, the appellants conspired with each other and with other persons to the grand jury unknown, to defraud the United States and to commit offenses against it, towit:

(a) To defraud the United States of penalties with respect to certain returns to be filed in connection with the above three estates, in the following manner: The three returns would not be filed on or before the dates on which they were due, and when they were filed Doyle would stamp the Ferrari return as having been received by the Collector on December 2, 1947; the Fontana return as having been received on February 27, 1948; and the Ferrando return as having been received on July 20, 1948 — the last two with their respective remittances.

(b) To violate 18 U.S.C.A. § 1001, by "knowingly and willfully" falsifying, concealing and covering up by a trick, scheme and device, a material fact, towit, the respective dates on which the respective returns would be filed, and by making false, fictitious and fraudulent statements and representations as to the dates on which the returns would be filed and on which the returns would be duly executed, "in documents, towit, United States Estate Tax Returns as hereinbefore set forth, * * * the said defendants * * * knowing said documents to falsify, conceal and cover up by a trick, scheme and device, material facts and to contain false, fictitious and fraudulent statements, * *."

This conspiracy count sets forth nine overt acts, including an allegation that the appellant Doyle "did stamp and caused to be stamped", on April 22, 1949, a stamp indicating that Ferrari's return was received by the Collector on December 2, 1947. Similar averments are made with respect to the Fontana return, which it is alleged was stamped on September 21, 1948, as having been received with remittance on February 27, 1948; and with respect to the Ferrando return, stamped on April 4, 1949, as having been received with remittance on July 15, 1948.

Count 2 sets forth that the appellants "did knowingly and wilfully cover up by a trick, scheme and device a material fact" in an estate tax return; namely, they stamped and caused to be stamped Ferrari's return to indicate that it was received by the Collector on December 2, 1947, whereas it was so received on or about April 22, 1949.

Counts 3, 5, and 7 charge that Cosgrove "did wilfully aid and assist in, and procure, counsel and advise the preparation and presentation" of false and fraudulent estate tax returns of the above-named three decedents "by aiding, assisting, procuring and advising" Doyle to stamp the returns so as to indicate that they were received on the respective fictitious dates set forth above, whereas the returns were actually received on the respective dates specified in Count 1, supra, as the dates on which they were stamped.

Counts 4, 6 and 8 allege that Doyle "did unlawfully and knowingly make and provide an opportunity for * * * Cosgrove to defraud the United States of penalties" in the three estate tax returns, by stamping false dates thereon, as hereinbefore fully set forth, "thereby making and providing an opportunity for * * * Cosgrove to defraud the United States of penalties due thereon in the amount of" $29,239.96, $4,268.34, and $5,087.97 in the Ferrari, Fontana, and Ferrando estate tax returns, respectively. Counts 6 and 8, in addition, charge that Doyle provided Cosgrove with an opportunity to defraud the United States of interest as well as penalties, in the Fontana and Ferrando returns, respectively, the amount of the interest being included in the two last figures given above.

2. Statement Of The Case

This is the second time that this case has been tried. The first trial started on June 25, 1952, and ended on July 9, 1952. It resulted in acquittals of the appellants on Counts 1 and 2, and in a disagreement on the remaining counts. The second trial commenced on September 22, 1952, and ended on October 3, 1952, with verdicts of guilty against Cosgrove on Counts 3, 5 and 7, and against Doyle on Counts 4, 6, and 8.

In our view of the case, a detailed statement of facts is unnecessary. The appellant Doyle concedes that Cosgrove filed all three returns late, but Cosgrove suggests in his brief that "delinquency of the Ferrari return was debatable". In the very next paragraph, however, Cosgrove admits that the Ferrari return "bears the filing stamp of the Collector's office indicating that it was received or filed December 2, 1947", while "The filing stamp bearing that date was actually placed on the return by deputy collector Doyle on April 22, 1949." The return was due on December 2, 1947. Doyle himself testified that the Ferrari return brought in by Cosgrove on December 2, 1947, was "incomplete", and that he advised the latter that it "should be completed as quickly as possible and the tax paid".

There is no doubt that all three returns were filed late, and that the appellant Doyle stamped them in such a way as to indicate that they had been filed on time.

But the fact of this false stamping is not dispositive of the case.

3. The Applicable Statutes

Section 371 of Title 18 U.S.C.A., the familiar conspiracy statute, reads in part as follows:

"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both."

The following is the text of 18 U.S.C. A. § 1001:

"Statements or entries generally

"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."

The foregoing two sections were the provisions under which Counts 1 and 2 were brought, respectively. It was on those two counts that the appellants were acquitted.

Counts 3, 5, and 7, under which the appellant Cosgrove was convicted, were based upon 26 U.S.C.A. § 3793(b)(1), which is as follows:

"Assistance in preparation or presentation. Any person who willfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a false or fraudulent return, affidavit, claim, or document, shall (whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document) be guilty of a felony, and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution."

The appellant Doyle was convicted under Counts 4, 6, and 8, brought under 26 U.S.C.A. § 4047(e) (5), which reads:

"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 —

* * * * * *

(5) Who makes opportunity for any person to defraud the United States; * * *

* * * * * *

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."

4. The Principle Of Res Judicata Applies To Criminal Cases

As late as four decades ago, it was seriously contended before the Supreme Court of the United States that the doctrine of res judicata "does not exist for criminal cases except in the modified form of the 5th Amendment, that a person shall not be subject for the same offense to be twice put in jeopardy of life or limb". In the leading case of United States v. Oppenheimer, 1916, 242 U.S. 85, 88, 37 S.Ct. 68, 69, 61 L.Ed. 161, Mr. Justice Holmes finally laid to rest any lingering doubts on this subject when he said:

"The safeguard provided by the Constitution against the gravest abuses has tended to give the impression that when it did not apply in terms, there was no other principle that could. But the 5th Amendment was not intended to do away with what in the civil law is a fundamental principle of justice * * * in

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