The opinion
HEALY, Circuit Judge
(concurring in part and dissenting in part).
This is an unusually simple case on its facts. It involves three estate tax returns prepared by appellant Cosgrove for three of his clients. Cosgrove filed these returns, with remittances, in the office of the Internal Revenue Collector at periods varying from seven months to seventeen months after the date they were due under the relevant revenue statute. In each instance appellant Doyle, a deputy collector, stamped the returns as having been received with remittances as of the date they were due. A money penalty is exacted by the statute for the late filing of such returns.
A single indictment was found by the grand jury accusing both Cosgrove and Doyle of offenses predicated on the aforementioned activities. In count one the two were charged jointly with conspiracy to defraud the government of the penalties. Count two charged them jointly with feloniously covering up the late filing by the trick and device of predating. There were six other counts, accusing the two men separately. Three of these charged Cosgrove with feloni-ously aiding and abetting Doyle in the predating of the returns. Three charged Doyle with feloniously affording Cos-grove an opportunity in each instance to defraud the government of the penalties by his (Doyle’s) predating of the returns. Thus in the transactions charged the two men complemented each other. They were like the opposite faces of the same shield.
On the first trial both were acquitted on counts one and two. In respect of the counts accusing them separately the jury disagreed. On the present trial the jury found the two men guilty on each of the counts separately levelled against them. The question before us is whether the prior acquittal on the conspiracy charge is res judicata as regards either or both men in respect of the separate charges of which they were severally found guilty by the second jury. My associates are of opinion that as respects Cosgrove the prior verdict of acquittal operated as res judicata. With this determination I agree. But they hold that as respects Doyle the legal principle is not applicable. With this view I am obliged to disagree.
The case on the present trial can not rationally be fragmented as the majority undertake to do. Its constituent parts do not permit of separate consideration. Manifestly when the jury convicted both men, it found that Cosgrove had the necessary criminal intent and had agreed with Doyle that the overt acts be done, and that Doyle likewise had a criminal intent and had agreed with Cosgrove to do the overt acts. Thus the determination by the second jury is necessarily inconsistent with the determination of the first, although it is impossible to ascertain whether the inconsistency lies with the conviction of Doyle or of Cosgrove, or of both. This view seems to me the only one in harmony with the Supreme Court’s holding in the Sealfon case. As I read Sealfon, the doctrine of res judi-cata serves to nullify a conviction or con *157 victions based on determinations of fact contrary to the determination of a prior jury. Accordingly, in my opinion, neither conviction here can stand.
On Rehearing
HEALY, Circuit Judge.
In a decision of this court of a year ago, involving charges against appellants [Lloyd J. Cosgrove and Paul V. Doyle, the judgment of conviction as against Cosgrove was reversed and that as against Doyle affirmed, one member of the court dissenting. Doyle petitioned for a rehearing and his petition was granted, the author of the original opinion dissenting. The case as pertaining to Doyle has now been reargued and is again before us for decision.
In the original opinion the nature and history of the case were fully developed and the pertinent statutes quoted, so that it is unnecessary again to plow that field at any great length. Enough to say that the two men were charged with conspiracy to defraud the government of penalties in connection with the late filling of estate tax returns in the cases of three separate estates. Doyle was an official of the Internal Revenue office with which the returns were filed and Cosgrove the attorney responsible for filing them. On an earlier trial a jury had found the men not guilty in respect of the two counts of the indictment charging them with conspiracy to defraud and jointly to cover up and conceal by scheme and device the late filing by Cosgrove of the returns. The jury were unable to reach an agreement with respect to the substantive charges against the men pertaining to the three returns. In a second trial before another jury Cosgrove and Doyle were found guilty of these substantive charges separately leveled against them. This court reversed as to Cosgrove for the reason that his former acquittal rendered the charges against him res judicata. But as to Doyle the acquittal was held not to constitute an adjudication.
The government did not ask for a rehearing in respect of the freeing of Cosgrove, nor did it seek certiorari. Accordingly the ruling as regards Cos-grove stands as the law of the case and we treat it for present purposes as controlling. We are of opinion that the ruling requires a reversal of the conviction in the case of Doyle as well.
In our former opinion, so far as Doyle was concerned, attention was given only to the barren letter of the indictment, and even its letter was in material part not taken into account. The evidence and the practicalities of the situation were ignored. Such treatment affords an inadequate approach to the problem of res judicata. Compare Sealfon v. United States, 332 U.S. 575 , 68 S.Ct. 237, 239 , 92 L.Ed. 180 . 1 The court’s assumption, indulged for purposes of decision, was that Doyle operated in a vacuum, whereas the record made on the trial shows that the whole thrust of the gov *158 ernmeiit’s evidence and argument was toward establishing-the proposition that what he did was done through prearrangement with Cosgrove and by concerted action between the two men. 2 Indeed, concert of action and mutuality of purpose are implicit in the substantive charges of which Doyle was convicted, no less than in those of which Cosgrove was found guilty. And it is likewise clear from the evidence that Cosgrove did in fact undertake to avail himself of the opportunity Doyle is alleged to have afforded him.
The record on the first trial shows that the two counts of which Cosgrove and Doyle were then acquitted contained every element charged against them in the substantive counts. The basic facts in the two trials were identical. If the prior verdict of acquittal of the two men was res judicata as to Cosgrove, it was res judicata as to Doyle as well. Our holding to the contrary .affronts reason; and we feel that what is not good sense ought not be perpetuated as law.
The conviction of Doyle is accordingly reversed.
. Sealfon v. United States is the most recent as well as the most nearly analogous authority on the subject of res judicata in criminal cases. There the Court noted that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses, and thus, with some exceptions, one may be prosecuted for both crimes. “But,” said the Court, “res judicata may be a defense in a second prosecution. That doctrine applies to criminal as well as civil proceedings [citing cases] and operates to conclude those matters in issue which the verdict determined though the offenses be different.” The Court thought that the only question in the case before it was whether the jury’s verdict in the conspiracy trial was a determination favorable to the petitioner of the facts essential to conviction of the substantive offense. “This depends,” said the Court, “upon the facts adduced at each trial and the instructions under which the jury arrived at its verdict at the first trial.” The Court further observed that “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.” [Emphasis supplied.]
. The government’s position on the second trial was made abundantly clear at the outset thereof. In 1 the opening statement of the United States attorney, outlining the issues for the enlightenment of the jury, he said that in order to avoid the penalties “Mr. Cosgrove procured Mr. Doyle” to date the returns as having ■been filed as of the date they were due.