SEALFON v. UNITED STATES
231
‘Gueananoe es
Appeals affirmed per curiam, 160 F.2d 108,
citing its previous decision in the Lederer
‘Terminal case,
[1,2], For reasons which we have set
forth in Jones v. Liberty Glass Co, 332
US. $24,.68 S.Ct. 229, the decision below
cannot stand. The two-year period pro-
vided by § 322(b) (1), rather than the four~
year period of § 3313, governs income tax
refund claims. The overpayment which
brings § $22(B) (1) into operation occurs
whenever the taxpayer has paid an amount
over and above his true liability. Hence,
Ff we assume thatthe deficiency assessment
and collection in this case were without
legal authority, the taxpayer's payment of
that illegal assessment was an overpayment
within the meaning of § 322(b) (1). And
hhe had two years from the date of that
payment within whieh to fle a claim for
refund, Since he did not file his claim
tani three and a half years after payment,
the claim was out of time,
[3,4] Tt may well be that the taxpay-
fer's refund claim was prompted by this
Court's decision in Helvering v. Janney,
‘supra, which set aside the Treasury regula
tion tipon which the deficiency assessment
was based. That decision was rendered om
December 9, 1940, and the taxpayer filed
his first refund claim on January 28, 1941.
But assuming that the Janney decision
‘makes clear that the taxpayer
here made an
‘overpayment, the loss which he now suffers
from an application of § 322(b) (1) is a loss
which is inherent in the application of any
period of limitations. Such periods are es-
tablished to cut off rights, justifiable or
not, that might otherwise be asserted and
they must be strictly adhered to by the
Judiciary. Rosenman v. United States, 323
U.S, 658, 661, 65 S.Ct. $36, 538, 89 LE.
535. Remedies for resulting inequities are
to be provided by Congress, not the courts.
[5] Moreover, it is not our province
to speculate as to why Congress established
fa shorter period of limitations relative to
‘the income tax than is the case of those
‘taxes governed by § 3313. It is enough that
§ 322(b) (1) creates a two-year period ap-
plicable to all income tax refund claims and
that the claim in this case is of that type.
Reversed,
‘Mr. Justice DOUGLAS dissents.
==
02 0.8. 575
SEALFON v. UNITED STATES.
No. 174.
‘Argued Dee. 11, 1947,
Decided Jan, 5, 1048.
1. Crlminal taw =200(6)
Sudgment C751
‘The commission of a substantive of-
fense and a conspiracy to commit it are
separate and distinct offenses, and with
some exceptions, one may be prosecuted for
both crimes but res judicata may be a de-
fense in a second prosecution.
2, Judgment €=751
‘The doctrine of res judicata applies to
criminal as well as civil proceedings and
operates to conclude those matters in issue
which the verdict determined though the
offenses be different.
3. Judgment 751
Whether acquittal of conspiracy to de-
fraud the United States precluded subse-
quent prosecution for commission of sub-
stantive offense, under doctrine of res
judicata, depended upon whether verdict
in conspiracy trial was a determination
favorable to defendant of facts essential to
‘conviction of substantive offense, which in
turn depended upon facts adduced at each
trial and instructions under which jury ar-
rived at its verdict, at frst trial,
4 Judgment 751
In determining whether acquittal of
conspiracy to defraud the United States
precluded subsequent prosecution for com-
mission of substantive offense, under doc
trine of res. judicata, instructions under238
which verdict was rendered were to be set
in a practical frame and viewed with an eye
to all circumstances of proceedings and
court would look to them only for such light
as they shed on issues determined by the
verdict,
Acquittal of conspiracy to defraud the
United States of its governmental function
of conserving and rationing sugar by pre-
senting false invoices and making false
representations to a ration board to the ef-
fect that certain sales of sugar products
were made to exempt agencies precluded
prosecution for commission of the substan-
tive offense of uttering and publishing as
true the false invoices, in view of evidence
‘and instructions under which verdict was
rendered, Cr.Code, §§ 28, 332, 18 US.CA.
§§ 72, 550.
On Writ of Certiorari to the United
States Circuit Court of Appeals for the
‘Third Circuit.
Robert Sealfon was convicted of uttering
and causing to be uttered forged invoices
for purpose of defrauding the government.
Judgment of conviction was affirmed by the
Circuit Court of Appeals, 161 F.2d 481, and
defendant brings certiorasi
Reversed.
Mr. John J. Wilson, of Washington, D.
, for petit
Mr. W. Marvin Smith, of Washington,
D.C, for respondent.
Mr. Justice DOUGLAS delivered the
‘opinion of the Court.
‘This case presents the question whether
an acquittal of conspiracy to defraud the
United States precludes a subsequent prose
cxtion for commission of the substantive
‘offense, on the particular facts here in-
volved,
‘Two indictments were returned against
petitioner and others. One charged a con-
spiracy to defraud the United States of its
68 SUPREME COURT REPORTER
governmental function of conserving and
rationing sugar by presenting false in-
voices and making false representations to
a ration board to the effect that certain
sales of sugar products were made to ex-
empt agencies? The other indictment
charged petitioner and Greenberg with the
commission of the substantive offense? viz,
‘uttering and publishing as true the false
invoices. The conspiracy indictment was
tried first and the following facts were
shown:
Defendant Greenberg manufactured
syrup and approached Sanford Doctors, a
salesman for a brokerage concern, to sell
vanilla syrup. Doctors negotiated some
sales to petitioner who did a wholesale busi-
ness under the name of Sero Syrup Co.
Thereafter Greenberg asked Doctors to get
a list from petitioner showing the places
where petitioner made sales and told him
that if any sales were made to exempt
agencies, Greenberg could sell to petitioner
in larger quantities, Doctors so informed
petitioner and some time thereafter peti-
tioner wrote to Greenberg saying, “at the
resent time some of our syrups are being
sold at the Brooklyn Navy Yard” and vari-
fous defense plants. Petitioner did sell some
of his syrup to a vending company which
hhad machines at the Navy Yard but it was
not vanilla syrup and no sales were made
to
the Navy Yard as such. Greenberg:
thereafter presented a series of false in-
voices to the ration board purporting to
show sales to petitioner for delivery to the
Navy Yard: Petitioner's letter was never
shown to the board. On the basis of these
invoices Greenberg received replacement
certificates for 21 million pounds of sugar,
10 million of which he sold to petitioner in
the form of vanilla syrup, and which was
by petitioner sold to non-exempt consumers,
mostly the National Biseuit Company. Pe-
titioner at first made payments to Green-
berg by check but thereafter gave checks to
his trucker which the latter cashed, de-
ducted his trucking fee, and paid Green-
Derg.
1 See § 25, Criminal Code, 18 USC. §
RIGUSCA $7
See § $82, Criminal Code, 18 USC. §
£550, 18 USCA. § 550.SEALFON v, UNITED STATES
239
“Ste an co S68 387
The jury returned a verdict of not guilty
as to petitioner.® Thereafter a trial was
hhad on the other indictment which charged
petitioner and Greenberg with uttering and
publishing ag true the false invoices intro-
duced in the conspiracy trial. Greenberg
pleaded guilty and the trial proceeded
‘against petitioner on the theory that he
aided and abetted Greenberg in the commis
sion of the substantive offense. The false
invoices, the letter from petitioner -to
Greenberg, and essentially the same testi-
mony were again introduced against peti-
ticner. In addition, it was brought out on
‘ross-examination that petitioner had un-
successfully sought replacement certificates
from his ration board for sugar contained
in syrups sold at the Navy Yard and de-
fense plants. Greenberg.
gave testimony
from which the jury could conclude that
Peitioner was a moving factor in the
scheme to defraud which was constructed
around petitioner's letter and that he was
familiar with Greenberg's intention to sub-
mit false invoices. Greenberg further tes-
tifed that petitioner received $500,000 in
cash under the agreement as a rebate of
two cents a pound on all replacement sugar
which Greenberg received on Navy Yard
invoices whether or not it was used in syrup
sold to petitioner, ‘This time the jury re-
tumed a verdict of guilty and petitioner
twas sentenced to five years’ imprisonment
and fined $12,000.
Petitioner moved to quash the second
indictment on grounds of double jeopardy
(aoandoned in this Court) and res judicata,
and also objected to the introduction of the
‘evidence adduced at the first tril. The dis-
‘trict judge ruled against petitioner, and the
court below affirmed. 3 Cir, 161 F.2d 481.
We granted the petition for a writ of cer-
tiorari because of the importance of the
quistion to the administration of the crim.
inal law,
“3The conspiracy Indictment also named
‘Leo and Murray Greenberg, Fresh Growa
Preserves Corporation in which th
Greenbergs were oficers (al of whom we
refer to sinply as Greenberg), the 8. J.
Baron Corporation, the “Royal Crown
Botting Co. of Baltimore, Ine, Royal
‘Crown Bottling Co. of Washington, Ine,
‘and William C. Fraokiis, president of the
[1,2] It has tong been recognized that
the commission of the substantive offense
and a conspiracy to commit it are separate
and distinct offenses. Pinkerton v, United
States, 328 US. 640, 613, 66 S.Ct. 1180,
1182, 90 L.Ed. 1489. “Thus, with some ex-
ceptions, one may be prosecuted for both
crimes, Ibid. But res judicata may be a
defense in a second prosecution. That dé
trine applies to criminal as well as civil
proceedings (United States v. Oppenheim-
er, 242 USS. 85, 87, 37 S.Ct. 68, 69, 61 LEA.
161, 3 LRA. 516; United States v. De
Angelo, 3 Cir, 138 F.2d 466, 468; Harris
¥. State, 193 Ga, 109, 17 S.E.24 573, 147 A.
LR 991; see Frank v. Mangum, 237 U.S.
309, 334, 35 S.Ct. 582, 590, 59 LEd. 969)
and operates to conclude those matters in
issue which the verdict determined though
the offenses be different. See United
States v. Adams, 281 U.S. 202, 205, 50 S.Ct.
269, 74 L.Ed. 807.
[3] Thus the only question in this case
is whether the jury's verdict in the con
spiracy trial was a determination favorable
to petitioner of the facts essential to con-
viction of
the substantive offense, This de-
pends upon the facts adduced at each trial
and the instructions under which the jury
arrived at its verdict at the first trial
[4] Respondent argues that the basis of
the jury's verdict cannot be known with
certainty, that the conspiracy trial was
predicated on the theory that petitioner was
a party to an over-all conspiracy ultimately
involving petitioner, Greenberg, and the
Baron Corporation. Thus it is said that
the verdict established with certainty only
that petitioner was not a member of such
conspiracy, and that therefore the prosecu-
tion was not foreclosed from showing in
the second trial that petitioner wrote the
letter pursuant to an agrecment with
Greenberg to defraud the United States.
Royal Crown _compauies. Grovnbe
plesded guilty, Baron Corporation pl
ti nolo contendere, and verdicts were di
rected for Royal Crowa. and Franklin
Ie was changed thet the Baron Corporac
ton participated. ia the conspiracy by
‘writing & letter similar to. that written
By petitioner, diseussed hereafter,
‘tee note 3, supra.240
The theory is that under the instructions
given the jury might have found that peti-
tioner conspired with Greenberg and yet
refused to infer that he was a party to the
over-all conspiracy.
‘The instructions under which the verdict
was rendered, however, must be set in a
practical frame and viewed with an eye to
all the circumstances of the proceedings.
We look to them only for such light as
they shed on the issues determined by the
verdict, Cf. De Sollar v. Hanseome, 158 U.
S, 216, 222, 15 S.Ct. 816, 818, 39 Ld, 956.
Petitioner was the only one on trial under
the conspiracy indieument. There was no
‘evidence to connect him directly with any-
fone other than Greenberg. Only if an
agrcement with at least Greenberg was ine
ferred by the jury could petitioner be con
victed. And in the only instruction keyed
to the particular facts of the case the jury
was told that petitioner must be acquitted if
there was reasonable doubt that he con-
spired with Greenberg. Nowhere was the
jury told that to return a verdiet of guilty
it must be found that petitioner was a party
to a conspiracy involving not only
Greene
berg but the Baron Corporation as well.
‘Viewed in this setting, the verdiet is a de
termination that petitioner, who eoncededly
wrote and sent the letter, did not do so pur-
suant to an agreement with Greenberg to
éefraud,
[5] So interpreted, the earlier verdict
precludes a later conviction of the substan-
tive offense. The basic facts in cach trial
‘were identical. As we read the records of
the two trials, petitioner could be convieted
of either offense only on proof that he
wrote the letter pursuant to an agreement
with Greenberg. Under the evidence intro-
éuced, petitioner could have aided and abet-
ted Greenberg in no other way. Indeed, re-
spondent does not urge that he could. Thus
the core of the prosecutor's case was in
each case the same: the letter, and the cir
That wae the view of the judge who
tried both eases, “At the secoad teal be
characterised as followe the charge and
fhe verlict at the fete "* o + what
was trled on the 11th of December was
68 SUPREME COURT REPORTER
‘cumstances surrounding it and to be infer-
red from it, and the false invoices. There
‘was, of course, additional evidence on the
second trial adding detail to the circum-
stances leading up to the alleged agreement,
petitioner's participation therein, and what
hhe may have got out of it. But at most
this evidence only made it more likely that
petitioner had entered into the corrupt
agreement. It was a second attempt 10
rove the agreement which at cach trial
‘was erucial to the prosecution's case and
Which was necessarily adjudicated in the
former trial to be non-existent, That the
prosecution may not do.
Reversed,
MARINO ¥. RAGEN,
No. $3.
Distributed to Court on Petitlon and Cone
‘essen of Error Oct. G 19
Veciied Bee. 22, 194
Motion for Instructions to Cirenlt Court
Denied Mareh 15, 148
See 833 U.S, 852,08 S.Ct. 729.
1. Conrts €>307¥%
Where trial court's order quashing
writ of habeas corpus was not reviewable
by any higher state court under state prac-
tice, writ of certiorari was properly ad-
dressed to tral court,
2, Cosrts o=400
Whether habeas corpus was an appro-
priate remedy in state court to correct de-
nial of due process was question of state
law, and where state throvgh attorney gen-
eral confessed error and consented to re-
versal of judgment quashing writ, the Su-
preme Court would accept the attorney gen-
eral's concession that habeas corpus was
proper remedy and in light of confession
' charge of conspiracy aod what the jury
by ite verdict datermined was that Seat
fon bad not entered into common agree-
mont with the Greenbergs and the Fresh
Grown Company to violate the law.”