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 under238 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.”