Before BIGGS, ALBERT LEE STEPHENS, and KALODNER, Circuit Judges.
Robert Sealfon was convicted in the United States District Court of New Jersey for the crime of uttering and causing to be uttered forged invoices for the purpose of defrauding the government. He appeals from the judgment.
There were two indictments and two trials involving the appellant and arising out of the same transactions.
(1) An indictment was filed against the appellant, together with the Fresh Grown Preserve Corporation, Murray Greenberg, Leo Greenberg, the S. J. Baron Corporation and others, for conspiracy to defraud the United States (18 U.S.C.A. § 88) and to commit offenses against the United States (18 U.S.C.A. §§ 72 and 80). The Fresh Grown Preserve Corporation, Murray Greenberg, Leo Greenberg and S. J. Baron Corporation pleaded guilty. A jury found appellant not guilty. (Other defendants not mentioned here were acquitted by direction of the court.)
(2) An indictment was filed against the appellant, together with Fresh Grown Preserve Corporation, Murray Greenberg and Leo Greenberg, for uttering and causing to be uttered false and forged invoices for the purpose of defrauding the United States. The appellant was charged as a "principal", defined as one who aids and abets in the commission of a crime (18 U.S.C.A. § 550). All of the defendants, except Robert Sealfon, pleaded guilty. A jury found him guilty.
The appellant was tried on the indictments in the order we have them set forth. He raises the question whether the court in the second trial erred in rejecting his plea of res judicata, interposed on the basis of his former acquittal.
There is conclusive authority for the rule that where a conspiracy to commit a crime is charged as an offense, neither an acquittal nor a conviction of a conspiracy to commit the crime is per se a bar to a prosecution for the commission of the crime, or for aiding and abetting another to commit it. The two are distinct and separate crimes. Carter v. McClaughry, 1902, 183 U.S. 365, 22 S. Ct. 181, 46 L. Ed. 236; Louie v. United States, 9 Cir., 1914, 218 F. 36; Bens v. United States, 2 Cir., 1920, 266 F. 152; and Curtis v. United States, 10 Cir., 1933, 67 F.2d 943. On page 643 of the opinion in the very late case of Pinkerton v. United States, 1945, 328 U.S. 640, 66 S. Ct. 1180, at page 1182, appears the following: "Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. See United States v. Katz, 271 U.S. 354, 355, 356, 46 S. Ct. 513, 514, 70 L. Ed. 986; Gebardi v. United States, 287 U.S. 112, 121, 122, 53 S. Ct. 35, 37, 77 L. Ed. 206, 84 A.L.R. 370."
Wisely or not, the doctrine that the conspiracy fuses into and becomes one with the accomplished crime is not made the American rule. By operation of statute the "aider and abettor" of the commission of a crime is a principal in the crime, and is punishable as though he actually was the perpetrator of the crime. Title 18 U.S.C.A. § 550 provides that "whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal."
In Pinkerton v. United States, supra, the Supreme Court upheld the conviction of a man on a substantive crime upon evidence that he had conspired with the actual perpetrator, and no evidence had been given that he had withdrawn from the conspiracy before the crime was committed. The theory was that since the conspiracy continued through the actual commission of the crime, "The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle." 328 U.S. at page 647, 66 S. Ct. at page 1184.*fn1
The difference in the two cases is that in our case the defendant was acquitted in the conspiracy charge, and convicted on the substantive charge, not as the perpetrator but as an aider and abettor. In the Pinkerton case the defendant was convicted on both charges; on the substantive, as in our case as an aider and abettor. But the difference does not affect the principles to be applied. The reason for sustaining both convictions in the Pinkerton case is that (borrowing an expression from the opinion) "The agreement to do an unlawful act is * * * distinct from the doing of the act." There the jury found every essential to a conspiracy present, as well as the fact that the overt act or acts in furtherance of the conspiracy aided the commission of the unlawful act. In our case the jury found something lacking in the evidence given in the attempt to convict the defendant of a conspiracy, but found the evidence given in the attempt to convict him of the substantive case sufficient to establish his aiding and abetting in its commission.
There is nothing significant in the fact that the evidence was substantially the same in the two trials of defendant. The very record of the first trial could have been introduced in the second trial under stipulation, and the case submitted upon it alone without violating the principle under discussion. Of course, this would not be true unless there were an ingredient of the one offense not found in the other, but in such a case there would be but one offense and the apparent difficulty fades out.
The principle applied in United States v. DeAngelo, 3 Cir., 1943, 138 F.2d 466, which the appellant cites, had no application here. In that case it was thought that the defendant would have had to be "present" to have been found guilty in the first trial, and that issue was resolved in the negative. The same requirement was in the second trial, and the issue was resolved in the affirmative. The court reversed the verdict and judgment of conviction in the second trial because of a rule of evidence that a fact having once been judicially determined between the same parties cannot again be litigated. United States v. Oppenheimer, 1916, 242 U.S. 85, 88, 37 S. Ct. 68, 61 L. Ed. 161, 3 L.R.A. 516. No such situation is present in our case. The two juries which tried appellant might have found every word of testimony given them to be true, and yet have determined, as was their right, Morris v. United States, 9 Cir., 1946, 156 F.2d 525, to find guilt or innocence in either without the slightest effect, one ...