# Petition — Ragano v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1760%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 427 U.S. 651 ## Text IN THE Supreme Court of the United States OcToBER TERM, 1975 No. 5-120] FrANK Racano, Petitwner, v. Unirep States oF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT E. Davip Rosen, Esquire Suite 130 Biscayne Building 19 West Flagler Street Miami, Florida 33130 Tuomas T. STEELE, Esquire, of FowLer, WHITE, GILLEN, Boaas, VILLAREAL AND BANKER, P.A. Post Office Box 1438 Tampa, Florida Attorneys for Petitioner Press or Byron S. ApAMs Parintine, Inc., Wasuincton, D. C. TABLE OF CONTENTS Page NN TN o's Shc dn un coenvenddeees chateces couse 1 PE. Sb dnc deudeced canis ebaneess &écbawenves 2 I ES. ocd inne nse undsekecedvons wens 2 Constitutional Provisions and Rule Involved ........ 3 I I ii cnc peudn ab ceva scedessenes 3 De Ne 7h Siie heey o98ccnsaesiescen 3 Mh Sade och ss eadkhb ucGnsdioavaannnes 8 Ch NR SP ..oc chu sus sdveeetadenbanidnanenade 9 Reasons for Granting the Writ .................... 12 NS ci ccna acde ies kveebenkeusnd heheeoe ie 29 TABLE OF AUTHORITIES CASES: Ashe v. Swenson, 397 U.S. 436 (1970) ........ 19, 20, 21, 23 Ball v. United States, 163 U.S. 662 (1896) .......... 7 Blackledge v. Perry, — U.S. —, 94 S.Ct. 2098 (1974) .. 26 Bryan v. United States, 388 U.S. 552 (1950) .......... 17 Connelly v. Director of Public Prosecutions, (1964) Sells HEE 5c Fa RKK KO eaN LR EKds bea ecadeeen ees 25 Forman v. United States, 361 U.S. 416 (1960) ...... 17 Glasser v. United States, 315 U.S. 60 (1942) ......... 3 Green v. United States, 355 U.S. 184 (1957) ..... 15, 18, 19, 20, 21 Leggroan v. Smith, 498 F.2d 168 (10th Cir. 1974) ... 17 State of Louisiana ex rel. Francis v. Resweber, 329 ee ee I ig ee ao ou os ae 17 Stroud v. United States, 251 U.S. 15 (1919) .......... 17 ii Table of Authorities Continued Page Trono v. United States, 199 U.S. 521 (1905) . .18, 19, 20, 21 Thomas v. United States, 450 F.2d 317 (5th Cir. 1971), cert. denied, 409 U.S. 859 (1972) ............... Time, Inc. v. Ragano, 427 F.2d 219 (5th Cir. 1970) ... 3 United States ex rel. Betts v. County Court for LaCross County, 496 F.2d 1156 (7th Cir. 1974) .......... 17 United States v. Jasso, 442 F.2d 1054 (5th Cir.), cert. ae Gs eer errr 17 United Siutes v. Lodwick, 410 F.2d 1202 (8th Cir.), cert. demied, 396 U.S. 841 (1969) ............05- 16 United States v. Newman, 468 F.2d 791 (5th Cir. 1972), cert. dented, 411 U.S. 905 (1973) .............65- 16 United States vy. Panzavecchia, 446 F.2d 1293 (5th Cir.), cert. denied, 404 U.S. 996 (1971) .......ccccecees 17 United States v. Ragano, 520 F.2d 1191 (5th Cir. 1975) 2 United States v. Ragano, 476 F.2d 410 (5th Cir. 1973).. 1,8 United States v. Rosenthal, 454 F.2d 1252 (2nd Cir.), cert. dented, 406 U.S. 931 (1972) ............... 16 United States v. Smith, 470 F.2d 1299 (5th Cir. 1973).. 17 United States v. Smith, 335 F.2d 898 (7th Cir. 1964), cert. denied, 379 U.S. 989 (1965) ................ 14 United States v. Stapleton, 494 F.2d 1269 (9th Cir. RRA Gee GAN INE IAL Re Pe ARS Bs ae 17 United States v. Tateo, 377 U.S. 463 (1964) .......... 17 CONSTITUTIONAL Provisions, STATUTES, AND RuLEs: Constitution of the United States, Amendment V.... 3 Federal Rule of Criminal Procedure, Rule 29(a) .... = 3 Se Raa UE ME kc bcos 6% ie bed oa sR RACOwEsereNNaeN 9 Oe Me, 0 ED bs scuecuddeueuesenned senses 26 eS Ss, no bowen saeeeheaerscneneease 10, 13, 15, 16 Pe Ses ED duvecneedesseskastueennns 9,10, 15, 16 ee Oe Se ED 6o6sn cchueSecdnadhshs saneeurens 2 Cal. Pen. Code § 654 (West Supp. 1974) ............ 25 Ill. Rev. Stat. ¢. 38, §§ 3-3, 3-4(b)(1) (1974) ........ 25 Table of Authorities Continued iii Page MISCELLANEOUS: R. Arguile, Criminal Procedure (1969) ............. 24 G. Bower, The Doctrine of Res Judicata (2nd ed. A. I 656 cudde Uudlecs bec Uni iw iiie beds woe 24 Schaefer, Unresolved Issues w the Law of Double Jeopardy: Waller and Ashe, 58 Cal. L. Rev. 391 PES WC-ee nin dee kanwaleonsesuauie sebustenasin 23 Note, Twice in Jeopardy, 75, Yale L.J. 262 (1965) ...24-25 ABA Minimum Standards for Criminal Justice, Joinder and Severance 1.1, 1.3 CAmpeOwed TORTG TBGR) oc ccccsccccccovcces 24 Final Report of the National Commission on the Re- form of Federal Criminal Laws: A Proposed New Federal Criminal Code $$ 703-706 (1971) .. 24 Model Penal Code §1.07(2) (Proposed Official Draft MEUM, ska aU CETN UM ea euaeted cheer eu uws beas 24 IN THE Supreme Court of the United States OctToBER TERM, 1975 No. Frank Racano, Petitioner, v. Untrep Srates or AMEkicA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Petitioner, FRANK RAGANO, by and through his un- dersigned attorneys, prays that a Writ of Certiorari issue to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case. OPINIONS BELOW The opinion of the United States Court of Appeals for the Fifth Circuit in United States v. Ragano (Ra- gano 1) is reported at 476 F.2d 410 (5th Cir. 1973), and the opinion of the United States Court of Appeals for 2 the Fifth Cireuit in United States v. Ragano (Ragano II) is reported at 520 F.2d 1191 (5th Cir. 1975). Ragano I is reprinted in App. A, pp. la-l7a, tmfra, and Ragano II is reprinted in App. B, pp. 18a-45a, infra. JURISDICTION The judgment of the Court of Appeals for the Fifth Cireuit in Ragano II was entered on October 14, 1975. It is reprinted in App. C, p. 46a, infra. This Court has jurisdiction under 28 U.S.C, § 1254(1). QUESTIONS PRESENTED I. Whether the Double Jeopardy Clause Precluded Ragano’s Retrial Under a Theory and Factual Characterizations Contrary to the Theory and Factual Characterizations Supporting the Conviction from Which He Appealed. A. Whether Ragano’s prior acquittal on original Count I for income tax evasion barred the subsequent prose- cution for income tax evasion and for the lesser in- cluded offenses of making false declarations in his 1966 and 1968 income tax returns. B. Whether, by successfully appealing his conviction un- der Count III of the original indictment, Ragano con- sented only to be Retried under the particular theory and particular factual characterizations that underlay the appealed-from conviction. C. Whether the “same transaction” or “same criminal episode” test for double jeopardy barred the govern- ment from reprosecuting Ragano under a different legal theory. II. Whether the Due Process Clause Precluded Ragano’s Re- trial Under a Theory and Factual Characterizations Con- trary to the Theory and Factual Characterizations Sup- porting the Conviction from Which He Appealed. III. Whether the District Court Erred in Denying Ragano’s Motion for a Directed Judgment of Acquittal. 3 CONSTITUTIONAL PROVISIONS AND RULE INVOLVED This case involves the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution which, in pertinent part, provides that no person ‘‘shall be subject for the same offense to be twice put in jeo- pardy of life or limb.. .’’, the Due Process Clause of the Fifth Amendment to the United States Constitu- tion which, in pertinent part, provides that no person may ‘‘be deprived of life, liberty, or property, without due process of law... ,’’ and Rule 29(a) of the Federal Rules of Criminal Procedure which, in pertinent part, provides: The Court on motion of a defendant or of its own motion shall order the entry of Judgment of aequit- tal of one or more offenses charged in the indict- ment or information after the evidence on either side is closed if the evidence is insufficint to sus- tain a conviction of such offense or offenses. STATEMENT OF THE CASE A. Background Facts The Petitioner, FRaNK RAGANO, is a prominent, albeit controversial, ef. Time, Inc. v. Ragano, 427 F.2d 219 (5th Cir. 1970), Florida attorney who, in the past, has engaged primarily in the practice of criminal law. In the present case, the facts are substantially uncontra- dicted and have been set out, in differing extents, in both Fifth Cireuit decisions. For a proper considera- tion of the issues raised in this Petiton, however, the critical historical facis have been set forth below in the view most favorable to the Government. See Glasser v. lnited States, 315 U.S. 60 (1942). In 1964 or 1965, co-Defendant, S. A. Rizzo, (Rizzo), an acquaintance of Ragano’s, sought his assistance in 4 obtaining a $5,000,000.00 loan from the Teamsters Un- ion Pension Fund. Rizzo wanted the money to buy and to develop a large tract of land north of Miami, land that he could purchase at a very favorable price because he knew the owner, Mr. Ives, and had known him for years. Ragano agreed to assist Rizzo in obtaining financing for the project and, in the course of this as- sistance, Ragano traveled to Chicago on numerous oc- easions to diseuss the proposed loan with trustees and other officials of the Pension Fund; in all probability, these discussions involved and included James Hoffa, though Ragano did not formally represent Rizzo nor did he appear on Rizzo’s behalf at any meeting at which the loan was officially considered. The loan application was made on Rizzo’s beha!i on February 9, 1965. A week later, on February 16, 1965, the trustees of the Pension Fund voted to approve the application. On Mareh 9, 1965, a commitment letter was issued. The loan was later consummated by Rizzo’s execution of a promissory note and mortgage. The #5,000,000.00 loan allocated its proceeds as $3,500,000.00 for the purchase of the land, $1,000,000.00 for eonstrue- tion and improvements and $500,000.00 for expenses, including commissions on the loan. On January 29, 1965, articles of incorporation had been issued to Two Seasons, Inc., a Florida corporation, organized for the purpose of acquiring, holding, and de- veloping real estate. On February 9, the date on which the lean application was formally submitted, the tra- ditional dummy incorporators of Two Seasons met for the purpose of electing Rizzo as president of the company and chairman of its Board of Directors. All fifty shares of capital stock in Two Seasons were issued jointly to Rizzo and to his wife, who was also an officer 4) and director of the company. On June 5, 1965, the property purchased with the loan proceeds was trans- ferred from Rizzo to Two Seasons. On May 12, 1965, Ragano received $15,000.00 from Two Seasons, charged to its ‘* Acquisition Costs”’ ae- count. Beginning on November 15, 1965, and continu- ing through 1967, Ragano received from Two Seasons sums in amounts ranging between $200.00 and #50,- 000.00. These amounts were treated as loans on the books of the corporation, but they were neither secured nor evidenced by promissory notes and bore no interest. Nor did Ragaio list eny of these loans as liabilities in his financial statements.’ On January 3, 1967, certificates representing 20 shares of Rizzo’s stock in Two Seasons, a 40°, interest, were cancelled and new certificates in the same amount were issued to Ragano. On the same date, Ragano exe- cuted an unsecured, non-interest bearing, demand note in the amount of $40,000.00 payable to the Rizzos. In March, 1967, but as of January 3, 1967, Ragano exe- cuted a financial statement in connection with a loan ap- plieation at the County National Bank of Miami Beach. That statement jisted as assets the 20 shares of Two Seasons stock, valued at $2,288,000.00; it did not, how- ever, list as liabilities either the $50,000.00 note to Rizzo or the loans from Two Seasons. From about the time of Rizzo’s loan application, Ragano began to procure a number of loans from the Central Bank of Tampa, where he had been previously The total of the loans was $90,550.00. However, $30,000.00 of this amount was eventually transferred on the company’s books to the *‘Legal Expense and Land Acquisition Costs’’ account, leaving a loan balance of $60,550.00 at the end of 1967. 6 a customer. At the beginning of 1965, he had one loan from this bank with a then outstanding balance of $16,500.00. Between February, 1965, and October, 1967, Ragano obtained eight additional loans in face amounts varying between $2,500.00 and $12,500.00. Interest was paid on each of these nine loans through September, 1967; no payments of principal were made on any of the loans after September, 1965, except for payments on one relatively small loan and three pay- ments totalling $1,755.45 on two of the other eight loans. Sometime in 1967 or 1968, Ragano delivered 10 shares of the Two Seasons stock to the bank for the purpose of redelivery to such person as might be designated at the time the loans should be repaid. As of August, 1968, when all of the loans were paid in full by a check drawn on a savings and loan institu- tion and sent to the bank by Rizzo, the outstanding balance was $51,108.12. The 10 shares were delivered, in accordance with the instructions, to Rizzo’s agent. On November 11, 1966, Ragano borrowed $25,000.00 from the County National Bank of North Miami Beach. This loan was later renewed, and still later combined with a second loan in the amount of $30,000.00 obtained on March 15, 1967. On December 6, 1967, Ragano pledged the remaining 10 shares of Two Sea- sons stock to secure payment of the combined loans. On January 3, 1968, a third loan of $30,000.00 was granted by the bank, nominally to Assured Home Im- provement Co. The loan was guaranteed by Ragano and was secured by the same 10 shares of Two Seasons stock that he had used as security for the original two loans. The loan proceeds were turned over to Ragano. On April 18, 1968, the total balance of $68,364.08 was paid by a check from Two Seasons and the stock was delivered to Rizzo. 7 The 20 shares of Two Seasons had not been listed in Ragano’s name during the full period between their Formal transfer to him in January, 1967, and the date in 1968 when Rizzo retrieved them from the banks. The certificate representing the shares was cancelled on March 24, 1967, and those shares were reissued to Rizzo, making him, once again, the sole record share- holder of Two Seasons. On November 6, 1967, the shares were again reissued to Ragano, this time in the form of two certificates representing 10 shares each; this change made it possible to put up some of the shares as collateral at each of the two banks. On January 2, 1968, one day before Ragano obtained the last of the bank loans, he and the Rizzos executed a Stockholders Agreement providing that, if any share- holder should pledge his stock as security for indebted- ness and that indebtedness came into default, the re- maining shareholders would havc the right to pay the obligations for which any such shares were pledged and would ‘‘become the owner thereof free and clear of any claim of ownership by the other stockholders or stockholder... .’’ On January 12, 1968, Ragano executed a handwrit- ten codicil to the agreement in which he assigned the 20 shares to Rizzo ‘tin consideration for the said 8. A. Rizzo assuming the present indebtedness of the under-_ signed to the Central National Bank of Tampa, Flor- ida, and the County Bank of North Miami Beach, Florida, and also holding the undersigned harmless and no longer indebted to the said corporation (Two Seasons) for loans made by the said corporation to the undersigned’’. No mention was made in the eodi- cil of any note or notes exeeuted by Ragano in Rizzo’s favor. 8 The corporate and other indebtedness of Ragano assumed by Rizzo in January, 1968, amounted to a total of one hundred eighty thousand twenty-two dol- lars and twenty cents ($180,022.20). B. Ragano I In Kiuited States v. Raygano, (Ragano I), 476 F.2d 410 (5th Cir. 1973), Ragano was charged in a three- count indictment with violating the federal income tax criminal penalty statutes. Specifically, Ragano was charged with (i) attempting to evade taxes due and owing for the calendar year 1967, in violation of 26 U.S.C. § 7201,° Gi) making a false declaration in his 1967 joint income tax return, in violation of 26 U.S.C. § 7206(1),* and (iii) making a false declaration in his 1968 joint income tax return, in violation of 26 U.S.C, § 7206(1). In this initial prosecution, the Government con- tended, and argued to the trial court and to the jury, that the stock transfers in question were, indeed, bona fide transactions, the tax consequences of which Ragano 726 U.S.C. § 7201 declares: Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution. *26 U.S.C. §7206(1) declares that any person who [willfully makes and subscribes any return, statement or other document, which contains or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter; * * * * * ¥ € * ‘* * shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000. or imprisoned not more than 4 years, or both, together with the costs of prosecution. 9 had failed to report correctly. The thrust of the Gov- ernment’s case was that Ragano had in 1967 received the stock as ordinary income as a finder’s or brokerage fee, had failed to report it as such in his income tax return for 1967, and had mistreated the proceeds of the sale of the stock in his 1968 income tax return by claiming a capital gain. At no time did the Govern- ment contend that the stock transactions were any- thing other than ordinary, bona fide transfers. The sole question was whether Ragano had, with criminal intent, failed to report the stock as ordinary income. The jury aquitted Ragano on both counts relating to 1967, but it convicted him under Count IIT of making a false declaration in his 1968 joint income tax return, in violation of 26 U.S.C. §7206(1). On appeal, the Fifth Circuit reversed and remanded ‘‘the cause’? for a new trial, holding that certain trial errors had de- prived him of a fair trial. Ragano II The retrial on original Count IIL was set for July 9, 1973, but, at the request of Ragano, it was 1eset for the week commencing August 6, 1975. On August 2, 1973, four days before the scheduled retrial, the fed- eral grand jury returned a superseding six-count in- dictment that charged Ragano with (i) conspiring with one 8S. A. Rizzo to defraud the United States in the collection of income taxes owed by Ragano for the years 1966 and 1968, in violation of 18 U.S.C. § 371, #18 U.S.C. § 371 declares: 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 im- prisoned not more than five years, or both. 10 (ii) attempting to evade taxes due and owing for the ‘alendar year 1966, in violation of 26 U.S.C. § 7201(1), (iii) making a false declaration in his 1966 joint in- come tax return, in violation of 26 U.S.C. § 7206(1), (iv) attempting to evade taxes due and owing for the ‘alendar vear 1968, in violation of 26 U.S.C. § 7201, and (v) making a false declaration in his 1968 joint income tax return, in violation of 26 U.S.C. § 7206(1). The Distriet Court denied Ragano’s motion to dis- miss the superseding indictment, but it severed the trial of Co-Defendant 8. A. Rizzo. Upon retrial, a jury convicted Ragano on all five counts. Ragano’s post-trial motions for a new trial, for a directed judg- ment of acquittal, and to dismiss the superseding in- dictment were all denied, and Raganoe was sentenced to five years’ imprisonment on Counts I, II, and IV, and to three years’ imprisonment on Counts II! and V, with the sentences on Counts II through V to run eoneurrent with that on Count I. Execution of the sentence was suspended, and Ragano was placed on three years’ probation. In this subsequent prosecution, the Government abandoned its earlier contention that the stock trans- actions were bona fide and, instead, rehabilitated its prosecution by arguing that Ragano and Rizzo had engaged in a series of sham stock transactions, con- spiring together to disguise the ordinary income na- ture of the money in question by these transactions. Yet this second ‘‘theory’’ was nothing new to the Gov- ernment. As the Government pointed out in its ‘Memorandum in Response to Defendant Ragano’s Motion to Dismiss’’: Undersigned counsel had always been critical of the theory of the case as previously tried, and has Pp a ee 11 expressly disassociated himself from it in the course of the appeal... . Upon receiving the assignment, counsel reviewed the entire evidence and consulted with investigators with a view to finding charges that would enable the Government to present the evidence on retrial in the most in- telligible manner. A determination was made to seek a new indictment in substantially the form originally recommended by the Internal Revenue Service (except for the omission of any charge having to do with offenses committed in the filing of the 1967 return), and authorization was sought from designated officers of the department of justice. Government Memorandum in Response to Defendant Ragano’s Motion to Dismiss at 3-4 (emphasis added). Additionally, in that same Memorandum, the Govern- ment also stated: ‘It is also, it should be observed, the theory on which the Internal Revenue Service had urged that the case be presented ....” Id. at 7. Thus, the Government’s own memorandum makes clear that, at the time of the initial prosecution of Ragano, the Government was fully aware of the ‘‘sham transaction’? theory and deliberately elected not to prosecute under that theory Rather, the Government put aside that theory and chose to prosecute Ragano under the ‘“‘bona fide stoek transfer’’ theory. Only after it had failed to convict Ragano on two of the three counts, and had lost its conviction on the third count on appeal, did the Government resurrect its alternative theory, the one that the IRS agents had originally recommended as the basis of prosecution. Appealing his conviction from this second, ‘‘sham transaction”’ trial, Ragano argued that the retrial un- der the superseding indictment violated his rights 12 under the Double Jeopardy Clause that the Govern- ment’s prior advocacy of the bona fide transaction theory entitled him to a directed verdict of acquittal under the sham transaction theory, and that certain trial errors were prejudicial. The Fifth Cireuit af- firmed this conviction. United States v. Ragano, 520 F.2d 1191 (Sth Cir. 1975). Ragano filed a timely Petition for Rehearing and Suggestion for Rehearing En Banc, which was denied, and he now files this his Petition for a Writ of Certio- ‘ari to the United States Court of Appeals for the Fifth Cireuit. The Order denying his Petition for Rehearing and Suggestion for Rehearing En Bane is reprinted in App. D, p. 47a, infra. REASONS FOR GRANTING THE WRIT The instant case is unique in several respects, but three points are critical to this Court’s analysis: First, after a full investigation, the Government elected in the original three-count indictment to prose- cute Ragano in connection with the $180,022.20 on the theory that, although the stock transactions were in- deed valid, he had not treated their tax consequences correctly. Hence, it must be assumed that the Gov- ernment decided that the publie interest would best be served, and that its chances of obtaining convictions were best, by proceeding under this theory, Second, the Goveriment lost two of the three counts on which it proceeded, and it was required by the Fifth Circuit, to afford Ragano a new trial on the third count because of multiple trial errors. mml,: — 7 anal ° ¢ Phird, instead of retrying Ragano on original Count Il which it concededly could have done, the Govern- aaa a a, eee 13 ment reindicted him on a new theory of prosecution that charged that the stock transactions were, in fact, asham. Thus, in the superseding indictment the Gov- ernment made a 180 degree turn in its characteriza- tion of the transactions in question. In Ragano I, the stock transactions were coneededly valid; in Ragano II, they were a “‘sham”’. I. The Double Jeopardy Clause Precluded Ragano’s Retrial Under a Theory and Factual Characterizations Contrary to the Theory and Factual Characterizations Supporting the Conviction from Which He Appealed. A. Racano’s Prior AcguirraL ON OriginaL Count I For Incomr TAX Evasion BARRED THE SUBSEQUENT Prosecution For Income Tax Evaston AnD For THe Lesser INCLUDED OrFENSES Or MAKING FALSE DecLaRATIONs Ix His 1966 Anp 1968 INCOME Tax RETURNS. Section 7201, 26 U.S.C. § 7201, declares: Any person who willfully attempts in any man- ner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than #10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution. In Count I of the original indictment, Ragano was charged with violating Section 7201 with respect to the calendar year 1967, The jury found him not guilty. Thus, at the first trial Ragano was acquitted of attempt- ing in any manner to evade or defeat any tar due and owing on the alleged finder’s fee. This ‘‘Count”’ was the sole tax evasion count in the original indictment. In the superseding indictment, Ragano was charged with, and was convicted of, violating Section 7201 in 14 1966 and 1968. This reindictment and subsequent con- viction is barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The critical legal point to be remembered through- out this discussion is not that each taxable year consti- tutes a separate violation; that rule is so well-settled as to be axiomatic. See, e.g., United States v. Smith, 330 F.2d 898 (7th Cir. 1964), cert. denied, 379 U.S. 989 (1965). Rather, the critical point here is that, in both prosecutions, the Government was prosecuting Ragano for attempting to evade the same tax on the same fee, the same dollars. All that changed was the Government’s characterization of the manner of. at- tempted evasion. In the first prosecution, the Government charged that Ragano attempted to evade the tax on the alleged finder’s fee when he received the shares of Two Seasons stock in 1967. In the second prosecution, the Govern- ment changed only its theory as to the manner by which Ragano allegedly attempted to evade the proper tax on the same alleged finder’s fee: again, the Government charged that Ragano had attempted to evade the proper tax on the alleged finder’s fee, but it proceeded on the theory that the various loans, fees, and stock transfers were merely sham transactions designed to camouflage the receipt of the alleged finder’s fee. Thus, in both prosecutions the Government sought to prove that Ragano had attempted to evade ordina ry income tax on the alleged finder’s fee: all that changed was the method or manner employed by Ragano in the alleged attempt. But Ragano had already, in the first prosecution, been acquitted of evading tax on this amount “in any man- ner.” That aequittal bars all subsequent prosecutions for any attempt to evade the proper tax on the alleged ee Oe 15 finder’s fee, and it also precludes prosecution for all lesser included offenses arising out of the alleged at- tempt. The law is perfectly clear that, had Ragano been convicted under original Count I of attempting to evade this tax in violation of Section 7201, the ( jovern- ment would have been barred from reprosecuting him for attempting to evade the proper tax on te —_ alleged fee, but accomplished in a different gure Yet, the Double Jeopardy Clause applies ane ay ; reprosecutions following convictions of the san = fense, but also to reprosecutions following acquitta S. See, €.9g., Green V. lL nited States, 355 | S. 184 (1957). Henee, having been acquitted of attempting to cry ‘‘in any manner’’ the proper tax on the alleged oe - er’s fee, Ragano was immunized from further proseeu- tion under Section 7201, regardless of the manner of evasion charged by the Government, Having failed onee to establish attempted evasion of tax on particu- lar income, the Government is precluded by the sgn Jeopardy Clause from reprosecuting Ragano fo : : tempting to evade the same tax on the same income bu in a different manner. Otherwise, with ponpeet, to criminal income tax prosecutions under Section 7201, the essential protections of the Double + eopardy Clause become meaningless. Beause the 1966 and 1968 convictions under Section 7201 are barred by the prohibitions of the Double Jeopardy Clause, so also are the 1966 and 1968 ° con- 5 Although, at first blush, the Double | y opardy bar — S available for the count alleging a violation of Section (2 : the vear 1968 (since that is the same statute and same year “4 which Ragano was convicted and subsequently won a new a ys such is not the ease. Again, the critical point to be rememberec 16 victions under Section 7206(1) barred. The law is clear that Section 7206(1) describes a lesser included offense of Section 7201, see, e.g., United States v. Lod- wich, 410 F.2d 1202 (8th Cir.) cert. denied, 396 U.S 841 (1969), and convictions of lesser included tax of- fenses must be vacated where the defendant has also been convicted of the greater tax offense. See, e.g. United States v. Newman, 468 F.2d 791 (Sth Cir. 1972), cert. denied, 411 U.S. 905 (1973); see aleo United States v. Rosenthal, 454 F.2d 1252 (2nd Cir.) cert. denied, 406 U.S. 931 (1972). Henee, sinee Ra- gano’s reprosecution under Section 7201 for 1966 and 1968 is barred, so also is his prosecution for those vears for an offense included within Section 7201. The con- viction under the couspiracy count is also barred be- cause it flows from the Government’s new, contrary characterization and theory of Ragano’s alleged at- tempt to evade the proper tax due on the alleged finder’s fee, and this contrary characterization of the Government's theory, as the next two subsections of this Petition explain, violated Ragano’s Double Jeop- ardy Clause rights in a slightly different way. ix P : > . on that, in Ragano I, the Government rehabilitated its prosecu- tion of Ragano by characterizing the stock transfer transactions as « ** ¢ ‘9 Ls hl . > « ’ ae a “*sham."" Thus, in Kagano 1, the alleged false . statement was the cost basis of the Two Seasons, Tne. 1 . Shares. , however, the alleged false statement was Ragano’s et ee to inchude in his J96S8 tax return a portion of the canne tae i finder s fee. Dut this alleged finder’s fee was the me Foe (“ whieh Ragano had been tried, and acquitted, in Basses f wale ingly, the Donble Jeopardy Clause barred Ragano’s re | lation of Section 7296(1) for the year 1968 onde the ( subsequent recharacterized theory, Aeccord- ‘trial for vio- overnment’s 17 B. By SvuccessruLLY AppeaALinc His Conviction Un- pER Count III or tHe OricinaL INDICTMENT, Racano Consentep ONLY To Be Retrrrep UNDER tHe PARTICULAR THEORY AND ParticuLAR Fac- TUAL CHARACTERIZATIONS THAT UNDERLAY THE APPEALED-F'ROM CONVICTION. Although the Double Jeopardy Clause declares that no person shall ‘‘be subject for the same offense to be twice put in jeopardy of life or limb,”’ the courts have developed a well-recognized exception to that rule: a criminal defendant who successfully appeals his con- viction has, in effeet, waived his Double Jeopardy de- fense by winning a new trial. ‘‘[A] defendant who appeals and is found entitled to a new trial has waived his right to claim double jeopardy at the second trial.” United States vy. Stapleton, 494 F.2d 1269, 1270 (9th Cir. 1974). See also United States vy. Tateo, 377 U.S8 463 (1964); Forman v. United States, 361 U.S. 416° (1960); Bryan v. United States, 338 U.S. 552 (1950) ; Stroud v. United States, 251 U.S. 15 (1919); Ball v. lL nited States, 163 U.S. 662 (1896) ; Leggroan v. Smith, 498 F.2d 168 (10th Cir. 1974); United States ex rel. Betts v. County Court for LaCrosse County, 496 F.2d 1156 (7th Cir. 1974); United States v. Smith, 470 F.2d 1299 (5th Cir. 1973); Thomas v. United States, 450 F.2d 317 (Sth Cir. 1971), cert. denied, 409 U.S. 859 (1972): United States vy. Panzavecchia, 446 F.2d 1293 (Sth Cir.), cert. denied, 404 U.S. 966 (1971); United States v. Jasso, 442 F.2d 1054 (5th Cir.), cert. denied, 404 U.S. 845 (1971); ef. State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947). Early court decisions held that the effect of the re- quest for, and the winning of, a new trial wiped the slate clean for both defense and prosecution. The 18 zenith of this view came with this Court’s decision in Trono v. United States, 199 U.S. 521 (1905). There the defendants had been convicted of assault but had been acquitted of murder in the first degree. On " )- peal, they were convicted of murder in the second Z gree.” Instead of their original six month sentences they were sentenced to eight years and fourteen years. rin gen plea that the Double Jeopardy Clause oO ep : : j : : “ a enetiees a reopening of the case, the Supreme ‘ in our opinion the better doctrine is that which sp not limit the court or jury, upon a new trial ~s — gr pees the question of guilt of the ‘er offense of which the ac | f ‘ued was convicted eg p trial, but that the reversal of the judg- a o prt egioce opens up the whole contro- hee 4 a we —= the original judgment as if it é ‘ver been. 1e accused, by his ow ad pr te sed, DY his own action, po obtained a reversal of the whole judgment _ par b . no reason why he should not, upon a nened scon re a against as if no trial had ‘eviously taken place. We d m ; ace, do not agree to tl \ a ‘ » f)G+ge N ; n oe - ee has the right to limit his aiver as to jeopardy, when he ; . as to j dy, » appeals from a or age against him. As the judgment stands eTore he appeals, it is a co e ba a Gon Ss, If 18 a complete bar to any f »y* “serge ° . ‘ " ur- rrr prosecution for the offense set forth in the Indictment, or of any lesser degree thereof. No — ean wrest from him the right to so use that yu ement, but if he chooses to appeal from it and Oo ASK ‘yr’ : peyveres } » cub 3 ig its reversal, he thereby waives, if sue- ssful, his right to avail himself of the former —_ 6 T° éé ° nde —'? e Spani ‘~ oP gier local procedures modeled upon pre-existing Span isn pract ledge!’ (rreen Vv. Uni ’ ~OXISTING * * . United States. 25% 178 . (1957) t > , . - . CS, B)5 | SS. 184, 195 . the Philippine Supreme Court was empowered to revi ‘ both faets and law : eles ebiit aw and to substit te ste & . : trial court. ite its findings for those of tie oe Bee. a ee See He 1 ee in eee ee ee a th me lly Ce. ened areas 19 acquittal of the greater offense, contained in the judgment which he has himself procured to be re- versed. 199 U.S. at 533. The Trono view of the sweeping, all-encompassing effect of the appealing defendant’s waiver has subse- quently been substantially restricted by two major Supreme Court decisions: Green V. United States, 355 U.S. 184 (1957), and Ashe v. Swenson, 397 U.S. 436 (1970). In Green, the defendant had been charged with (i) committing arson by maliciously setting fire to a house and (ii) causing the death of an inhabitant of the house, At the first trial, the jury was instructed that, as to the second count, it could find him guilty of either first degree murder or second degree murder. The jury found him guilty of arson and of second degree murder, but it did not find him guilty of murder in the first degree. He was sentenced to one to three years’ imprisonment on the arson count and to five to twenty years’ imprisonment for murder in the second degree. Green then appealed and won a new trial on the ground that the verdict was not supported by suffi- cient evidence. On remand, he was retried, convicted of murder in the first degree, and sentenced to death. The Supreme Court reversed, holding that the Double Jeopardy Clause barred the second prosecution for first degree murder. Rejecting the Government’s argument that the ‘‘total waiver” theory of Trono v. United States, supra, controlled, the late Justice Black declared: The right not to be placed in jeopardy more than onee for the same offense is a vital safeguard in 20 our society, one that was dearly won and one that should continue to be highly valued. If such great constitutional protections are given a narrow, grudging application they are deprived of much of their significance. 309 U.S. at 198 (emphasis added). Although not ex- plicitly overruling Trono’s ‘total waiver”’ theory, the Green decision makes clear that the Trono opinion was not to be ‘‘extended beyond its peculiar factual set- ting,’’ 355 U.S. at 197. In Ashe v. Swenson, supra, this Court strengthened the safeguards of the Double Jeopardy Clause even further by holding that, as a matter of constitutional necessity, it embodied the doctrine of collateral estop- pel. But even more important to the present appeal, this Court there sharply condemned prosecutorial re- finement of a case upon retrial. The defendant in Ashe had been accused of robbing six men who were engaged in a poker game. Ashe was first prosecuted for robbing one of the poker game participants, but the jury acquitted him on the ground of insufficient evidence. Six weeks later, Ashe was brought to trial again, this time for robbing another of the poker game participants, and was convicted. The United States Supreme Court granted certiorari and reversed, holding that the first jury’s determina- tion that Ashe had not been present at the robbery precluded the second prosecution. The Court, in an opinion by Justice Stewart, held that the Double Jeop- ardy Clause embodied the rule of collateral estoppel and that, since the issue of Ashe’s presence at the rob- bery had been determined adversely to the prosecution in the first trial, the proseeution was precluded from 21 a second prosecution that hinged upon that same fac- tual issue. | Noteworthy in the Ashe decision is this Court s co cluding statement, a statement highly pertinent anc relevant to the present case: “— : kly this case the State in its brief has frank] Pt that following the petitioner’s en it treated the first trial as no more than - ry = for the second prosecution: ‘‘No doubt t _—_ — eutor felt the state had a provable case on the — charge and, when he lost, he did what ev s y g ‘ attorney would do—he refined his presen ws ms light of the turn of events at the first trial. = this is precisely what the constitutional guarant forbids. 897 U.S. at 447 (emphasis added). Although a nh tual circumstances of Ashe are, of course, di es from those in the present ease, the similarity . “ Government’s behavior in the present case to see od havior condemned in Ashe is striking. Here, the oe ernment admittedly tried Ragano, won only a pa ve conviction, lost that conviction on appeal, oa . completely recharacterized and rehabilitated i beac for the sceond prosecution. Not content with a : that the Fifth Circuit in Ragano T had explicitly ele contained sufficient evidence to warrant —ronge un- der original Count ILI, 476 F.2d at 413, the oe pe ment ‘refined’? and rehabilitated its case in ~~. the events and facts disclosed at the first ae a can Ashe’s policy be distinguished on the groun 7 Ragano’s conviction here on the original Count 1 - it effect kept open the entire matter for — se The Supreme Court’s decision m Green * . a States, supra, makes clear that the Trono view of a unlimited waiver has been rejected. 22 The Double Jeopardy Clause must be held to pre- clude the Government from taking an exactly contrary view of the financial transaction or transactions in question, in the present series of prosecutions, after it has heard a defendant’s defense to a particular prosecutorial theory. Otherwise, a criminal defendant will necessarily be inhibited from making a full de- fense at trial for fear that, if he is convicted and then Wins a new trial on appeal, the prosecutor will be able to devise a new theory of criminal liability to counter- act the already-presented defense. The Double J eop- ardy Clause should, therefore, be applied to preclude the retrial of a defendant, after a successful appeal, on any theory and factual characterizations other than those that supported the reversed conviction. Ragano here, by successfully appealing his eonvie- tion under original Count III, waived only his double jeopardy right not to be retried under that particular theory and that particular view of the facts for that particular offense. He did not consent, either explic- itly or implicitly, to be retried under a new, rehabili- tated prosecutorial theory that entailed an interpreta- tion of the facts contrary to the interpretation put forward by the Government in the first trial. C. THe “Same Transaction’? On “Same Croan Kpisope’’ Test For DovsLe Jeoparpy Barrep Tur GOVERNMENT From Reprosecutinc RaGano UNpER A Dirrerent Lecar THrory. Instead of reproseeuting Ragano under original Count IIT, which it certainly had the right to do, the Government dismissed that indictment and charged him with five counts, including a conspiracy count, that en- abled it to assert that the various stock transactions AE ee 23 were a sham. The conspiracy count was the critical count in the reprosecution; the alleged conspiracy was one designed to disguise the payment of the alleged finder’s fee. Thus, the alleged conspiracy was integral to the Government's new, rehabilitated theory of pros- ecution. The ‘‘same transaction”’ test for defining ‘‘offense”’ under the Double Jeopardy Clause bars the Govern- ment from prosecuting defendants, such as Ragano, under new and different theories of criminal liability. The “same transaction” test for double jeopardy, as advocated by Justice Brennan in his concurring opin- ion in Ashe v. Swenson, supra, would require ‘‘the prosecution, except in the most limited circumstances, (footnote omitted), to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode or transaction.”” 397 U.S. at 453-54. Justices Marshall and Douglas endorsed Jus- tice Brennan’s view, but the late Justice Harlan eX- pressly disavowed it. A majority of this Court, to this date, has neither accepted nor rejected it. Neverthe- less, in the view of Justice Schaefer of the IHinois Su- preme Court, the failure of the majority in Ashe to adopt the ‘‘same transaction’? test can in no way be read as a rejection of that view. The Court decided Ashe upon the narrowest possible ground, in accord with sound judicial policy. Schaefer, Unresolved Is- sues in the Law of Double Jeopardy: Waller and Ashe, 58 Cal. L. Rev. 391 (1970). The ‘‘same transaction’’ test has been approved by both the American Law Institute’s Model Penal Code aud the American Bar Association’s Minimum Stand- ards for Criminal Justice Relating to Joinder and Sey- 24 erance., Section 1.07(2) of the Model Penal Code pro- vides: [A] person shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting roa ad at the time of commencement of the first rial. Model Penal Code § 107(2) (Proposed Official Draft 1962). Similarly, the ABA Minimum Standards re- quire compu'sory joinder of related offenses that ‘are based upon the same conduct or arise from the same criminal episode.” ABA Minimum Standards for Criminal Justice, Joinder and Severance 1.1. 1.3 (Ap- proved Draft 1968). See also Final Report of the Na- tional Commission on the Reform of Federal Criminal Laws: A Proposed New Federal Criminal Code §§ 703-706 (1971). The collective opinions and reeom- mendations of these prestigious legal institutions can- net lightly be ignored, The *‘same transaction” test, although long and vig- oreusly advocated by critics of the present svstem of permissive joinder? js not merely an intellectual fic- ment, untried in the ‘treal world.”’) To the contrary, a number of states presently apply, both statutorily and through case law, the protections accorded by the “same transaction”’ test. See Note, Twice In Jeopardy, *B.g., Ro Arguile, Criminal Procedure 115-16 (1969) (‘Where therefore, offenses may be joined, they ought to be joined”) ; o. Bower, the Doctrine of Res Judicata 281 (2d ed, A. Turner 1969) (‘| T]he prosecutor is always to combine in one indictment i a ae ‘ al! the charges which he intends to prefer, arising out of one trans- action :). | | | O45 75 Yale L.J. 262, 275ns. 60-62 (1965); Cal. Pen. Code § 654 (West Supp. 1975); Lil. Rev. Stat. ¢. 38, §§ 3-3, 3-4(b)(1) (1975). Moreover, England has abolished its restrictive view of double jeopardy and has adopted a rule of compulsory joinder of all known criminal of- fenses in the initial prosecution. Sce Connelly v. Di- rector of Public Prosecutions, (1964) A.C, 1254. In the Connelly decision, Lord Devlin made it clear that, in addition to curbing the potential for abusive re- prosecutions, the House of Lords had another publie policy in mind in adopting a rule of compuisory erim- inal joinder: the courts must conduct their proceed- ings so as to command the respect and confidence of the public, so it is absolutely necessary that issues of fact that are substantially the same be, whenever practica- ble, tried by the same tribunal at the same time. The United States Congress has recently enacted a statutory version of the ‘‘same transaction’? compul- sory joinder rule in the Speedy Trial Act of 1974, P.L. 93-619 (January 3, 1975), 18 U.S.C. §3161(d). See- tion 3161(d) provides: (d) If any indictment or information is dis- missed upon motion of the defendant, or any charge contained in a complaint filed against an individual is dismissed or otherwise dropped, and thereafter a complaint is filed against such defend- ant or individual charging him with the same of- fense or an offense based on the same conduct or arising from the same criminal episode, or an in- formation or indictment is filed charging such de- fendant with the same offenses or an offense based on the same conduct or arising from the same criminal episode, the provisions of subsections (b) and (¢) of this section shall be applicable with re- spect to such subsequent com} laint, indictment, or information, as the case may be. 26 18 U.S.C. $3161(d). Accordingly, Section 3161(d) specifically provides, in effect, for a compulsory join- der of all offenses **based on the same conduct cr aris- ing from the same criminal episode... .”’ The *‘same transaction’? test, implemented by the procedural rule of compulsory joinder of all known of- ferises, has found widespread acceptance in all but the federal courts. Henee, this Court should hold that the Government, on the facts of this case, exceeded the con- stitutional limitations on its prosecutorial powers when it reindicted and retried Ragano under an entirely new theory based upon substantially the same evidence pre- sented at the first trial, and this Court should not per- mit the conspiracy count conviction to preelude such a determination. Under the ‘same transaction’? or ‘same criminal episode’? definition of ‘‘offense,’’ the Government was barred from reprosecuting Ragano under any charge save Count III of the original indiet- ment. II. The Due Process Clause Precluded Ragano’s Retrial Under a Theory and Factual Characterizations Contrary to the Theory and Factual Characterizations Supporting the Con- viction from Which He Appealed. In retrying Ragano under a presecutorial theory diametrically opposed to that employed in the first trial, the Government's conduct ¢ ntravened the Due Process Clause of the Fifth Amencment to the United States Constitution. Such conduct violated Ragano’s constitutional right to be prosecuted according to our criminal justice system’s norm of ‘fundamental fair- ness”’. See Blackledge v. Perry, U.S, 94 S.Ct. 2098 (1974). In that decision, this Court made very clear that the Due Process Guarantees prevent prose- cutors from ‘‘upping the ante’’ riding on a criminal — 27 defendant’s appeal. Here, Ragano sought and won a reversal of his conviction under Count ILL of the orig- inal indictment. Faced with genuine difficulties (but of its own making) with retrying Ragano under Count ILI, the Government resurrected the trial theory orig- inally recommended by the IRS investigating agents. At no time did the Government attempt to justify why it should have been permitted to reject the theory of the first trial and substitute the originally recommended theory. The Government should not be permitted to argue opposing theories of its case without being re- quired to demonstrate a compelling reason for such a switch, and the Due Process Clause of the Fifth Amendment to the United States Constitution should be read and applied to require the Government to demonstrate such a compelling reason. III. The District Court Erred in Denying Ragano’s Motion for a Directed Judgment of Acquittal. At both the close of Jie Government’s case and the close of his defense, Ragano timely moved for a directed judgment of acquittal. These motions were denied, The Government, in its subsequent. prosecutions of Ragano, has advanced two different, separate, distinct, and factually inconsistent theories of criminal liability. In Ragano I, the Government conceded that Ragano acquired the shares of Two Seasons, Inc., as part of a bona fide transaction; the thrust of its theory of crim- inal liability was that, although the shares were actually acquired by Ragano, the acquisition of the stock should have been treated by Ragano as income in 1967 and, therefore, upon the sale of the stock in 1968, there should have been no gain or loss recorded. In Ragano 11, however, the Government ‘‘reversed its field’’ and charged that the stock acquisition was a ‘‘sham’’, in- tended to evade proper taxation on the alleged finder’s 28 fee. Thus, on the same facts, the Government took two diametrically contrary views of the transaction or transactions in question. By first prosecuting Ragano unde ‘a theory that conceded the validity of the aequi- sition of the shares of Two Seasons, Inc., the Govern- ment, in effect, conceded for the record that a strong probability existed that a jury could find that the ae- quisition of the shares was a bona fide transaction. Yet, in the second Prosecution, the Government charged that the acquisition of the shares was, in fact, not bona fide. Rather, the Government contended that the acquisition was part of a sham transac- tion. Obviously, as the Government’s multiple indiet- meits and prosecutions show, the facts of the present “ase give rise to at least two equally credible hypoth- eses, both inconsistent on the factual basis of guilt. To Say, as did the Fifth Cireuit in rejecting Ragano’s contention that he was entitled to a directed verdict of acquittal, that both characterizations lead to hypotheses of guilt, misses the point; here, both characterizations ‘annot simultaneously support hypotheses of guilt. In light of the Government’s admittedly inconsistent treatment of the critical facts involved in Ragano’s multiple prosecutions, it is clear that the inconsistency of Ragano IT with Ragano IT requires that Ragano’s conviction under the indietment in Ragano II be re- versed and remanded with directions to the District Court to enter a judgment of aquittal. Where the Gov- ernment takes inconsistent factual and legal positions in subsequent prosecutions of the same criminal defend- ant, it should not be permitted to argue that, although both theories are inconsistent, nevertheless, both point toward guilt. Such an argument is, in effect, pleading in the alternative, the inescapable result of which is that the Government has conceded from the outset that the stock transactions were, in all probability, valid. 29 CONCLUSION This Petition for Certiorari presents several related issues, but underlying each of these issues is the funda- mental question of the extent to which the Government may, upon retrial, reopen previously-decided questions. Nowhere in its opinion did the Fifth Cireuit confront the inescapable inconsistency and conflict between the Government’s initial and subsequent theories of Ragano’s criminal liability. By affirming Ragano’s con- vietion, the Fifth Cireuit implicitedly sanctioned such prosecutorial tactics. Yet the Fifth Cireuit’s sole com- ment was: So restricting the prosecution from proceeding upon a new legal theory at retrial would erode severally the gold served by permitting retrial of a criminal defendant after the reversal of a convie- tion. 520 F.2d 1198. Nowhere did the Fifth Cireuit discuss the propriety, let alone the desirability, of such prosecutorial behav- ior. Accordingly, the real issues of the present case re- mains undiseussed and unresolved. In Ragano I, the Government characterized the finan- cial transactions in one way; in Ragano 11, it advocated a precisely contrary characteriza\ion. In Ragano J, the Government prosecuted Ragano for attempted tax evasion on the alleged finder’s fee and lost; in Ragano II, the Government rehabilitated its prosecution by charging Ragano, under a new theory of criminal liabil- ity, with attempted tax evasion for two different years. The result, of course, is that Ragano’s previous acquit- tal for tax evasion for the year 1967 has been rendered meaningless; and this result, no matter how the Gov- ernment may seek to justify it, is forbidden by the 30 Double Jecpardy Clause of the Fifth Amendment to the United States Constitution, Apart from its **new’’ rehabilitated theory of crim- inal liability, the Government also reprosecuted Ragano under a different characterization of the facts. In Ragano 1, the shares of Two Seasons, Ine., stock were concededly transferred and Ragano was considered a bona fide shareholder. In Ragauno 11, however, the Gov- ernment flip-flopped and contended that the so-called transfer was but a ‘*sham’’, In so doing, however, the Government has conceded that a jury could just as easily find a bena fide transfer as tind a **sham’’. Given these opposite characterizations of the facts by the Government, it should be precluded from contending that either characterization is more likely to be true, Finally, the Government's retrial of Ragano under this different, inconsistent prosecutorial theory violated his constitutional right to be prosecuted with ‘*funda- mental fairness’’, in contravention of the Due Process Clause of the Fifth Amendment to the United States Constitution. For the foregoing reasons, a Writ of Certiorari should issue to review the Judgment of the United States Court of Appeals for the Fifth Cireuit in this case, Respectfully submitted, Kk. Davip Rosex, Eseuire Suite 130 Biseavne Building 19 West Flagier Street Miami, Florida 33130 Tuomas T. Sreerr, Esouire, of Fow Ler, Wuire, GILLEN, Boaas, VILLAREAL AND BANKER, P.A. Post Office Box 1438 Tampa, Florida Attorneys for Petitioner APPENDIX la APPENDIX A UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT. No, 72-2954. Unirep States or America, Plaintiff-Appellee, v. Frank Racano, Defendant-Appellant. April 9, 1973. By a judgment of the United States District Court for the Middle District of Florida, at Tampa, Gerald B. Tjo- flat, J., the defendant was convicted of the crime of filing of income tax return which he did not believe was true in every material respect and he appealed. The Court of Appeals, Grooms, District Judge, held, inter alia, that error of court in admitting testimony of revenue agent of an alleged admission by defendant as to another person’s testimony before state commission to the effect that de- fendant had earned stock as a finder’s fee and as an at- torney’s fee although defendant neither tacitly nor ex- pressly admitted the truth of the testimony by the other who was not a witness, was not harmless, where court’s instruction anticipated an inculpatory response which did not materialize and was misdirected. Reversed and remanded. Thornberry, Circuit Judge, filed a specially concurring opinion. 1. Criminal Law § 1159.2(9), 1154.4(1) It is not for reviewing court to weigh evidence or deter- mine credibility of witnesses. 2a 2. Criminal Law § 1159.2(5) Verdict of jury must be sustained if there is substantial evidence, taking view most favorable to the Government, to support it. 3. Criminal Law § 1159.2(7) Reviewing court in considering sufficiency of evidence does not determine whether it establishes guilt beyond rea- sonable doubt but only whether the evidence would permit trier of fact to find defendant guilty beyond reasonable doubt. 4. Internal Revenue § 2451 There was sufficient evidence to establish defendant’s guilt of violation of statute making it a crime to willfully make and subscribe income tax return which taxpayer does not believe to be true and correct as to every material mat- ter arising out of transaction in which defendant acquired stock in real estate development corporation for which he had arranged a loan for developer. 26 U.S.C.A. (LR.C. 1954) § 7206(1). ). Criminal Law § 878(4) Trial court did not err in denying motion of defendant, found guilty of violating statute making it a crime to will- fully file income tax return which taxpayer does not believe to be true and correct, for an acquittal on ground of in- consisteney of verdict which found defendant guilty on such charge but acquitted him on counts one and two of the indictment based upon defendant’s alleged failure to report the receipt of the value of the stock as income for specific year and for making a false statement as to the same, 26 U.S.C.A. (1.R.C. 1954) § 7206(1). 3a 6. Criminal Law § 407(1) Where defendant neither tacitly nor expressly admitted testimony of another before state commission, testimony of such other person before commission was not admis- sible as an implied admission in prosecution of defendant in which such other person was not a witness and was not subject to cross-examination. 26 U.S.C.A. (1R.C.1954) § 7206(1). 7. Criminal Law § 407(1) Where witness’ total response adds up to a clearcut de- nial, no theory of implied admission is available to make such evidence admissible as an exception to a hearsay rule. 8. Criminal Law § 662(1) Confrontation clause of Sixth Amendment is not violat- ed as long as the declarant is testifying as a witness and is subject to full and effective cross-examination. U.S.C.A, Const. Amend. 6. 9, Criminal Law § 1169.5(5) Error of court in admitting testimony of revenue agent as to an alleged admission by defendant regarding anoth- er person’s testimony before state commission to the effect that defendant, charged with crime of filing income tax return which he did not believe was true in every material respect, had earned stock as a finder’s fee and as an at- torney’s fee although defendant neither tacitly nor ex- pressly admitied the truth of the testimony by the other who was not a witness in prosecution, was not harmless, where court’s instruction anticipated an inculpatory re- sponse which did not materialize and was misdirected. 26 U.S.C.A. (1.R.C0.1954) § 7206(1). 4a 10. Criminal Law § 470 Mere qualifying of witness as an expert does not neces- sarily render his every conclusion immune from challenge, and expert should not be allowed to state his conclusions on the whole ease. 11. Criminal Law § 419(1) Generally, testimony of an essentially factual nature should not be predicated on opinions, inferences and con- clusions of others. 12. Criminal Law § 470 Trial court committed error in refusing to strike ulti- mate conclusion testified to by expert witness as to why defendant, charged with crime of filing income tax return which he did not believe to be true in every material re- spect, should have reported the receipt of stock in 1967 return although answer related primarily to return in- volved in another count since answer went to the key issue involved in count of which defendant was convicted. 26 U.S.C.A. (LR.C.1954) § 7206(1). 13. Criminal Law § 1038.1(5) Court’s instruction on presumption of knowledge of law which properly submitted to jury the question of defend- ant’s ignorance of law as that question related to specifie intent was not such as to constitute plain error in absence of objection by defendant who was convicted of filing in- come tax return which he did not believe to be true in every material respect. 26 U.S.C.A. (I.R.C.1954) § 7206 (1); Fed.Rules Crim.Proe. rule 52(b), 18 U.S.C.A. 14. Criminal Law § 822(6) Taking court’s instruction as a whole there was no error in any failure of court to define essential elements com- da prising the crime of filing an income tax return which tax- payer does not believe to be true in every material respect. 96 U.S.C.A. (1.R.C.1954) § 7206(1). Michael L. Kinney, St. Petersburg, Fla., John R. Park- hill, Edward M. Waller, Jr., Tampa, Fla., for defendant- appellant. John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff- appellee. Before Bert and Txornserry, Circuit Judges, and Grooms, District Judge. Grooms, District Judge: : f a three The appellant was conv. ied on Count ITI,, of count indictment, of a violation of 26 U.S.C.A, § 7206(1). Count III related to appellant’s 1968 return and charged that on June 16, 1969, appellant knowingly made a false declaration in claim to have sold 20 shares of Two Seasons, Ine. stock for $230,022.20 that he had purchased for $00,- 000.00, and that the income of $180,022.20 was properly treated as a long term capital gain. *** Any person who—— 7 (1) Declaration under penalties of perjury. — Willfully makes and subscribes any return, statement, or other doeu- ment, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material r . matter; . 7 . - “ - o o e shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned not more than 3 years, or both, together with the costs of prosecution. 6a . Tn late 1964 and early 1965 appellant assisted S. A. Rizzo in obtaining a $5,000,000.00 loan from the Pension Fund of the Teamster’s Union. The loan was to be used to bu and develop 700 acres of land just north of Miami Flori. da. The land which had an appraisal value of $9 500,000.00 was purchased for $3,500,000,00. Two engin. “se ons organized by Rizzo for the purpose of acquiring holding and developing the land. The property purchased, together with the balance of the loan proceeds was traneforred by Rizzo to the corporation, ) eat " On January 3, 1967, a certificate representing 20 shares of Rizzo’s stock in Two Seasons, Inc.. a 40% interest was transferred to appellant, who on the same date ennented & non-interest bearing demand note to Rizzo in the amount of $50,000.00." On March 24, 1967. appellant’s stock cer tificate was cancelled, and reissued to Rizzo echuneibie for use by Rizzo as collateral. On November 6, 1967, the er were reissued to appellant, who claimed that ‘der md “a — the stock was in effect held in trust for On January 12, 1968, appellant transferred his stock to Rizzo in consideration of the cancellation of the $50, 000.00 note of January 3, 1967, and Rizzo's assumption of appellant’s indebiedness to the County National Bank of North Miami Beach in the amount of $68,364.08, to the Central Bank of Tampa in the amount of $51,108.12, and to Two Seasons, Ine. in the ; - of eanneessn e amount of $60,500.00, a total oy Much evidence was taken as to another note of July 16. 1965 ger by — to Rizzo in the amount of $50 000.00 Appel- ‘ claims that that note evidenced t} ulee of ) 1e purchase price of the 2 shares of stock, but that he was " grees ' ‘ * was unable to borrow money . Psa ‘Vv to Pav off the note and that Rizzo would not issue the stock; that he a informed that the note had heen lost; that Rizzo wished a Men nage that in pr - vive a new note if the stock Was issued / him; and that the January 3. 1967 ai pheregid anuary 3, 1967, note was executed ° stock issued pursuant to that understanding i oe - a 7a rs] Beginning in 1965 and over a period of approximately three years Two Seasons paid fees and expenses and made loans to or on behalf of appellant of $252,552.09. llowever, no amount was paid on the principal sum of $90,000.00, The Government’s basic charge stems from its claim that the real consideration for the issuance of the twenty shares of Two Seasons stock was not a $50,000.00 debt evidenced by the note but fees earned by appellant in procuring the loan from the Pension Fund. [1-3] A careful review of the evidence covering more than eleven hundred pages of the transcript, leads us to the definite conclusion that the sufficiency of the evidence as to appellant's guilt was for the jury under the guiding principles so frequently announced. Glasser .v. United States, 315 U.S. 60, 80,° 62 S.Ct. 457, 469, 86 L.Ed. 680; Gordon v. United States, 438 F.2d 858, 867* (5th Cir.). (4] In reaching this conclusion we could not overlook appellant’s testimony at a hearing in June 1968, before the Shevin Committee of the Florida legislature in the course of its investigation into organized crime, in which he testified that the Two Seasons stock was a part of his fee—‘a combination of attorney’s fees and I am in hope of finder’s fees.’’ Nor appellant’s deposition of October 7, 1968, taken in connection with a libel suit that he filed against Time, Ine., wherein he deposed that he had achieved ownership of the stock, ‘‘partially for legal serv- ices and partially as a finder’s fee.’’ Nor his second deposi- 2*It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. United States v. Manton, 2 Cir., 107 F.2d 834, 839.”’ *“<'T)n considering the sufficiency of the evidence who do not determine whether it establishes guilt beyond a reasonable doubt, but only whether the evidence would permit the triers of fact to find the defendants guilty beyond @ reasonable doubt. 8a tion on December 26, 1968, in the same case wherein he again deposed to substantially the same statement; nor his testimony in the case as follows: ‘*{Bjut the ultimate result was that I gave him $50,- 000 note for the stock, and that’s how I was able to acquire the stock, regardless of how I labeled it. Q. Regardless of how you labeled it, sir? A. That’s right. If you recall, Mr. Dempsey, I said this time and time again, it is a combination of find- er’s fee and legal fees. I left that up to my aecount- ant. I left it up to the IRS Agent. But when you come down to it, whether after all that is said and done, I never would have gotten the stock without the $50,- 000 note.’’ This answer appears to sum up appellant’s construction of the consideration for the stock as well as his qualifica- tions of prior statements. Likewise, on the issue of wilfulness and intent we have not overlooked appellant’s evidence that he laid the whole transaction before the agents preceding the filing of his 1968 return and that he cooperated with them in supply- ing whatever information that he had in his possession. The fact that appellant bared his breast to the investigat- ing agents and extended his cooperation would not exempt him from prosecution and the penalties of the law, if he nevertheless, proceeded to do what the law proscribed, ) [5] Counts I and IT of the indictment were grounded upon appellant’s alleged failure to report the receipt of the value of the stock as income for 1967, and in making a false statement as to same, respectively. The jury found appellant not guilty on these counts. He contends that there is such repugnancy and inconsistency between the not guil- ty verdicts on Counts I and IT and the guilty verdict on Count III, that Count III eannot stand. Throughout the aaa a 9a trial appellant took the position that the stock had no value on the date of its acquisition in January 1967; that its enhancement from zero to the sum for which it was sold in 1968 xesulted from the development of the property during that period. Under this theory the jury could well have found that there was no value to report for 1967, or, at least, could have held that there was ample doubt about the value. Other assumptions could be, but will not be, indulged as a basis of the jury’s verdict on Counts I and II. The court did not err in denying appellant’s mo- tion for judgment of acquittal on the ground of inconsist- ency of verdicts. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 40, 76 L.Ed. 520; United States v. Panzavecchia, 446 F.2d 1293 (5th Cir.). Appellant insists that there was error to reverse in the action of the court in admitting the testimony of Revenue Agent Greenwald of an alleged admission by appellant as to Rizzo’s testimeny before the Florida State Beverage Commission to the effect that appellant had earned the stock ‘fas a finder’s fee, an attorney’s fee.’’? The issue was first presented in the course of the prosecution’s opening statement and was represented to the court as being an admission by appellant of Rizzo’s testimony. Over objee- tion the court ruled that appellant having responded to the statement. the statement of the agent became ‘‘res- gestae of admission.’’ The question was again presented in the course of the direct examination of appellant’s accountant, Andretta. The court stated that anything that appellant said in the course of the interview with the agent would constitute ‘‘an admission exception to the hearsay rule,’’ and that it was necessary in order to determine the extent of the ad- mission to have not only what appellant said but what was said to appellant. The court further stated that he would instruct the jury that it could not consider the comments made by Rizzo to prove the truth of the assertions of 10a Rizzo, but that the jury could consider the comments in the context of appellant’s response.° When Greenwald took the stand, counsel for appellant reminded the court that he had objected to the conversa- tion in the October 1968 conference as to what Rizzo had testified to when the accountant was called. The court re- plied by instructing the jury as to the consideration to be given to the conversation, the statement of Rizzo, and the response of appellant,’ following which Greenwald tes- tified that: ‘‘A. I told Mr. Ragano that I was aware of testimony that Rizzo had given to the State Beverage Depart- ment, wherein Mr. Rizzo had testified that Ragano had received the stock for services rendered. I asked Mr. Ragano whether that was true, whether they were legal fees. Mr. Ragano replied no, it was not for serv- ices rendered in that he had bought the stock for $50,000 note. He said the books of Two Seasons would bear this out. * Counsel for appellant stated that he would object when the time came, in reply to which the court ruled that it was not neces- sary to object. °“*Tue Court: Ladies and Gentlemen of the Jury, in telling you what transpired between himself, Mr. Greenwald, and the de- fendant in the form of conversation, it is anticipated that Mr. Greenwald is going to relate the conversation, and in relating the conversation he will say some things that Mr. S. A. Rizzo told h.m in the defendant’s absence. In other words, during his con- versation with the defendant, he may occasionally say, ‘Mr. S. A. Rizzo said such and such to me, and what do you have to say about that,’ or words to that effect. ‘‘Now, you may not consider what he relates, the witness relates as having been said by S. A. Rizzo out of the defendant's presence. You may not consider that as going to the truth of the matter of the statement that S. A. Rizzo said, but you may consider the defendant's response to those statements.’’ nr ee eee a be ee ee oe lla ‘*Q. Did he indicate if he was aware of Mr. Rizzo’s testimony? ‘¢A. He said he was aware of it.’’ Greenwald also testified with respect to a further confer- ence in May 1969, when Mr. Adair, an agent now deceased, was present: ‘‘A. Mr. Adair pointed out to Mr. Ragano that the statements of Rizzo that the stock had been given to Ragano as a legal fee, and that there was no other consideration. Ragano said that he did not know why Rizzo had testified this way, but it was not true.”’ Defendant’s witness Whyte was cross-examined as to a telephone conversation between him and Greenwald which related to the witness’s awareness that Rizzo had testified before the Beverage Commission that the stock had been given to appellant for services rendered. In his closing argument the prosecutor put the matter flatly as follows: ‘‘fAlnd we know from the evidence that Mr. Rizzo testified that the payments of stock which had been made to Mr. Ragano in January of 1967 were pay- ments to Mr. Ragano for legal fees.’’ [6, 7] Appellant neither tacitly nor expressly admitted the alleged statement by Rizzo. On the contrary he flatly denied the truth of any such statement, Certainly in the face of his denial, appellant’s knowledge of Rizzo’s testi- mony can hardly be construed as an admission. Where the witness’s (otal response adds up to a clear-cut denial, even any theory of implied admission is not available. MeCor- mick, Handbook of the Law of Evidence, at 528 (1954 Ed) ; Com. v. Twombly, 319 Mass. 464, 66 N.E.2d 362, and 12a People v. Wysocki, 267 Mich. 52, 255 N.W. 160. ‘‘A flat denial [is] in no sense an admission.’’ Twombly, supra. [8, 9] The confrontation clause of the Sixth Amendment is not violated as long as ‘‘the declarant is testifying as a witness and subject to full and effective cross-examina- tion.’ California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489. But here Rizzo did not testify, and, of course, was not subject to cross-examination. In short the prose- cutor succeeded in getting Rizzo’s testimony before the jury and in exploiting it in his closing argument without calling Rizzo as a witness. He now seeks to avoid the con- sequences of his action by a resort to the harmless error rule and the court’s instruction that the jury could not consider what Greenwald related as having been said by Rizzo as going to the truth of Rizzo’s statement. Success- fully getting Rizzo’s statement before the jury was not the result of a passing incident but of a persistent and sustained efiort. The court’s instruction anticipated an in- culpatory response by appellant that did not materialize, and was consequently misdirected. In the recent case of United States v. Johnson, 5 Cir., 439 F.2d 885 (1971), where hearsay testimony was intro- duced solely to show that customs agents were on the lookout for defendant, and not to show the truth of what the informer said, and where the court accepted the ruling and instructed the jury accordingly, Judge Rives, speaking for this court, said: ‘“‘The government next argues that the statements of the informer at most constituted harmless error under Fed.R.Crim.P, 52(a). Erroneous admission of evidence can often be corrected by appropriate jury instructions, Conner v. United States, 5 Cir. 1963, 322 F.2d 647. But before a constitutional error can be held harmless, the court must believe it harmless beyond a reasonable doubt. Chapman v. California, 1967, 386 U.S. 18, 22-24, 87 S.Ct. 824, 17 L.Ed.2d 705.”’ ee l3a In Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476, the court ruled that it could not ‘‘accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination,’’ in the context of a joint trial, where a co-defendant implicated petitioner in a written cofession, but did not take the stand. In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed. 2d 923, where it was held that the trial court was in error in admitting the transcript of the testimony of an absent witness taken on a preliminary hearing when the defend- ant was without counsel, the court stated: ‘‘There are few subjects, perhaps, upon which this Court and other courts have been more nearly unani- mous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.’’ In Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed, 790, involving a hearsay statement by a co- conspirator to the complaining witness some six weeks after transportation in violation of the Mann Act, the court stated: ‘*It is contended that the statement attributed to the alleged co-conspirator was merely cumulative evi- dence, that without the statement the case against pe- titioner was so strong that we should hold the error harmless under 28 U.S.C. (1946 ed.) § 391. In Kottea- kos v. United States, 328 U.S. 750 [66 S.Ct. 1239, 90 L.Ed. 1557], we said that error should not be held harmless under the harmless error statute if upon consideration of the record the court is left in grave doubt as to whether the error had substantial influ- ence in bringing about a verdict. ... We cannot say that the erroneous admission of the hearsay declara- l4a tion may not have been the weight that tipped the scales against petitioner.’’ Barton v. United States, 263 F.2d 894 (Sth Cir.), was a ease involving the admissibility of an unsigned statement of a co-defendant given out of the presence of the defend- ant, Mitchell, and a motion for a severance. The court in reversing ruled: ‘‘The sole reliance for Mitchell’s protection was the court’s instruction to the jury, several times repeated, not to treat the statement as evidence against Mitchell. Considering the substance and terms of Barton’s state- ment, we doubt whether it was at all possible to carry out that instruction. To do so certainly would require twelve minds more perfectly disciplined than those of the average human jurors. ‘“‘The Government argues that a separate trial for Mitchell would have made no difference in the out- come, because ‘Mitchell was bound hand and foot by the most awesome array of evidence imaginable, quite apart from the confession of Barton.’ We cannot, how- ever, substitute ourselves for the jury, whose duty it was to pass upon Mitchell’s guilt or innocence.’’ See also, Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934. Appellant’s ‘‘admissions’’ with respect to the considera- tion for the stock were not unequivocal but qualified, The jury should have been permitted to consider their weight unburdened by inadmissible hearsay. We conclude there was error and that the evidence of guilt in this case was not so overwhelming as to render the error harmless, as ‘ was found by the Supreme Cout in Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340, and by this lida court in Hoover v. Bete, 5 Cir., 467 F.2d 516, under the facts of those cases. Appellant challenges the action of the court in overrul- ing his motion to strike the answer of witness Brock as to why appellant should have reported the receipt of the stock in his 1967 return. The witness answered: ‘‘ Because this is the year that he received pay for services rendered in the form of stock.’’ Though the question and answer related primarily to the 1967 return involved in Count I, the answer went to the key issue involved in Count I1Il—the crux of the Govern- ment’s charges against appellant in reporting the transac- tion as a long term capital gain rather than ordinary in- come. [10,11] The Court is not unmindful of the modern trend to abandon the rule allowing experts to express an opinion upon ultimate issues when the opinion is otherwise admis- sible.” The mere qualifying of a witness as an expert, Pas- chal v. United States, 306 F.2d 398 (5th Cir.), does not necessarily render his every conclusion immune from chal- lenge. Experts ‘‘ought not to [be] asked or allowed to state their conclusions on the whole case.’’ United States v. Spaulding, 293 U.S. 498, 506, 55 S.Ct. 273, 277, 79 L.Ed. 617. ‘‘It is generally agreed that testimony of an essential- ly factual nature should not be predicated on the opinions, inferences and conclusions of others.’’ Paschal, supra. The Sixth Cireuit in Kentucky Trust Co. v. Glenn, 6 Cir., 217 F.2d 462, had for consideration the claim that certain trusts had been created in contemplation of death, The question and the answer by the agent of the Internal Revenue Service were as follows: ‘**Upon what facts or circumstances, did you base your determination that the Trust estates were part of 7 See proposed New Federal Rules of Evidence, Rule 704 and note thereunder. l6a Mr. Schmidt’s estate?’ The answer was: ‘Well, my determination was made by the fact that the Will, the Trust instruments and the life insurance policy as- signinents were all made at practically the same time.’’ The court, in ruling that the trial court erred in overruling the objection, stated: ‘*The testimony of the government witness as to why he made the determination to the effect that the trusts in question were made in contemplation of death in- vaded the province of the jury and permitted the witness to express his opinion as to the ultimate fact. The witness should not have been permitted to testi- fy, in effect, why he believed the deceased made the trusts in contemplation of death. The testimony was incompetent and prejudicial.”’ [12] The court erred in overruling appellant’s motion to strike. [13] The court’s instruction on presumption of the knowledge of the law * was not such as to constitute plain error under Rule 52(b), Fed.R.Crim.P. There was no ob- jection to the charge. The first part of the instruction is identical to the charge before the court in Edwards v. United States, 334 F.2d 360 (Sth Cir.), Note 3, and held to be not such plain error as to require a reversal. The last sentence properly submitted to the jury the question of appellant’s ignorance of the law as that question related ***Tt is not necessary for the prosecution to prove that the de- fendant knew that a particular act or failure to act is a violation of law. Unless and until outweighed by evidence in the case to the contrary, the presumption is that every person knows what the law forbids, and what the law requires to be done. However, evi- dence that the accused acted or failed to act because of ignorance of the law, is to be considered by the Jury in determining whether or not the accused acted or failed to act with specific intent, as charged,’’ ee PL i ee ee | note ila Gach, a ent y AT , 17a to specific intent. The court’s action finds support in Wardlaw v. United States, 5 Cir., 203 F.2d 884, where it was held that whether the defendant acted under a bona fide misconception of income tax law in failing to report income was for the jury on the issue of knowledge and willfulness. [14] Taking the court’s instruction as a whole, we likewise find no error in any failure of the court to define the essential elements comprising the offense charged in Count IIT. Appellant claims that he was denied a fair trial be- cause of the cumulative effect of a series of prejudicial and unfair tacties by counsel for the Government. We have carefully considered these claims, and must frankly state that in certain particulars counsel went to the outer limits of legality. However, in those particulars the court was prompt and firm in its efforts to eradicate any resulting prejudice; and in view of such efforts we are reluctant to and will not hold that it did not succeed in doing so. Although the court’s action in overrnling the objections to the admission in evidence of the income tax returns of Rizzo and Two Seasons, Inc., was not challenged on this appeal, we, however, in the interest of trial economy deem it 18a APPENDIX B UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT. No. 74-2376. Unrrep States or America, Plaintiff-A ppellee, v. Frank Racano, Defendant-Appellant. Oct. 14, 1975. Following a remand by the United States Court of Ap- peals, 476 F.2d 410, the United States District Court for the Middle District of Florida, at Tampa, Ben Krentz- man, J., entered a judgment finding defendant guilty on five counts of income tax charges including charge of con- spiracy, and he appealed. The Court of Appeals, Simpson, Circuit Judge, held inter alia, that following the defend- ant’s successful appeal of his conviction for false swear- ing to income tax return, Government was not precluded by collateral estoppel or double jeopardy from trying the defendant on the false swearing charge on a wholly new theory, that corporate reports were properly admitted un- der the Business Records Act, that corporate tax returns were properly admitted for limited purpose, that court properly refused to allow admission of letter from person not a witness and that evidence was sufficient to sustain cons iction, Affirmed. 1. Criminal Law § 193 Where defendant by successful appeal secures reversal of a conviction, a retrial for the same events does not put him twice in jeopardy. U.S.C.A.Const.Amend. 5. 19a 2. Judgment § 713(1) Doctrine of ‘‘collateral estoppel’’ means simply that when an issue of ultimate fact has been once determined by a valid and final judgment, that issue cannot again be litigated between the same partics in any future lawsuit. See publication Words and Phrases for other ju- dicial constructions and definitions. 3. Judgment § 751 Where Government prosecuted taxpayer for false swear- ing on tax return on theory that although taxpayer’s sale of stock was a valid long-term capital gain transaction, original receipt of stock by taxpayer was income which should have been reported on his earlier return as income and taxpayer successfully appealed his conviction, Goy- ernment was not precluded by collateral estoppel from retrying taxpayer on same charge of false swearing on new theory that the stock transaction was a shain to disguise payments to taxpayer in the form of loans and that the loans were income to taxpayer on which income taxes wer> due and owing. 26 U.S.C.A. (1.R.C.1954) § 7206(1); U.S. C.A.Const. Amend. 5. 4. Criminal Law § 1177 Under concurrent sentence doctrine, if conviction is sus- tained as to conviction under count 1 of the counts as to which concurrent sentences were imposed it is unneces- sary to determine legality of conviction under the remain- ing counts. 5. Conspiracy § 28(2) Conspiracy is not the commission of crime which it con- templates and neither violates nor arises under statute whose violation is its object. 20a 6. Conspiracy § 28(2) 3 _ . . . . Commission of substantive offense and entering a con- spiracy to commit that offense are separate and distinct and ordinarily a person may be convicted or sentenced for both. 7. Criminal Law § 1192 Where defendant taxpayer was successful in obtaining reversal of conviction on count of complaint charging the making of a false declaration in tax return, upon retrial the Government was not precluded from adding to the in- dictment a count, not contained in the original indictment, charging conspiracy to defraud Government in the col- lection of revenue. 8. Criminal Law §419(1), 436 Corporate reports filed with various departments of state of Florida purporting to list all directors, officers, and, in one instance, shareholders of corporation during period taxpayer purportedly owned stock satisfied require- ments of Federal Business Records Act, qualified as ex- ceptions to hearsay rule and were admissible in prosecution of taxpayer nce motive to assure accuracy was fulfilled by fact that each was required by state to be filed as a condition of corporate existence and loss of corporate priv- ilege could result from failure to file or by filing intention- ally false documents, 28 U.S.C.A. § 1732(a); West’s F.S.A. '§ 608.04, 608.041, 608.351. 9. Criminal Law § 45 To be admissible under the Business Records Act, ree- ords must be kept pursuant to some routine procedure de- signed to assure their accuracy, they must be created for motives that would tend to assure accuracy and they must not themselves be mere accumulations of hearsay or unin- formed opinion. 28 U.S.C.A, § 1732(a). ‘ ee MDG Pal: 62 AAP Chap entnde 2la 10. Criminal Law § 444 Failure of Government to lay a foundation in form of testimony by employee of corporation as to procedures used in preparing and filing corporate documents was not fatal to their admission under the Business Records Act in taxpayer’s prosecution for income tax violation, in light of stipulation as to their authenticity and fact that they were filed and prepared in the regular course of business. 28 U.S.C.A. § 1732(a). 11. Criminal Law § 436 Taxpayer’s testimony as to his strained relations with corporate officer affected only the weight to be aecorded to the corporate documents, admitted under the Business Rece- ords Act in income tax prosecution to show that transfer of stock to taxpayer and his sale thereof was a sham, and not their admissibility. 28 U.S.C.A. § 1782(a). 12. Criminal Law § 1169.2(7) Since corporate records, admitted under the Business Records Act in prosecution of taxpayer for purpose of showing that stock transfers between corporation and tax- payer was a sham, were similar in form and tenor to doc- uments which were already in evidence and which also failed to list taxpayer as either an officer or director, and both an employee of corporation and an officer testified that in the realm of their duties they had never any knowl- edge of taxpayer having authority of an officer or direc- tor of corporation, documents were merely cumulative of other evidence that taxpayer was not an officer or director and any error in their admission was harmless. 26 U.S.C.A. (1.R.C.1954) § 7206(1). 13. Criminal Law § 486 Admission in prosecution of individual taxpayer, in- volved in corporate stock transaction of corperate tax re- 22a turns for limited purpose of use by government expert Witnesses in arriving at valuation of corporation's stock was not error, and furthermore did not prejudice case of defendant taxpayer whose loan application valued stock greatly in excess of value placed thereon by government testimony. 26 U.S.C.A. (1.R.C.1954) § 7206(1), 14. Criminal Law § 433 Where taxpayer’s counsel in prosecution for false swear- ing on income tax return involving corporate stock trans- action was permitted on eross-examination of taxpayer’s accountant to use letter from corporate accountant to tax- payer’s accountant to the full extent requested and sub- sequently taxpayer’s attorney declined to eall corporate accountant as a witness trial judge did not err in refusing to permit contents of letter to be published through tax- payer’s accountant, since letter embodied the opinion of corporate accountant as to tax consequences of stock trans- actions. 15. Criminal Law § 1159,2(1) Proper standard for review to be applied irrespectively of whether evidence is direct or circumstantial is whether reasonable minds could conclude that evidence was incon- sistent with accused’s innocence. 16. Internal Revenue § 2451.6 Evidence at second trial was sufficient to establish tax- payer’s guilt of false swearing to income tax return not- withstanding fact that Government’s theory in first trial resulting in conviction, which was reversed on appeal, was that although defendant acquired corporate stock in valid transaction he treated tax consequences incorrectly while at second trial Government proceeded on new theory that stock transactions were a sham to mask the payment of a finder’s fee to taxpayer. 26 U.S.C. (I.R.C.1954) § 7206(1). - oe 23a E. David Rosen, Miami, Fla., Michael L. Kinney, Thom- as T. Steele, Tampa, Fla., for defendant-appellant. John L. Briggs, U. 8. Atty., Jacksonville, Fla., Claude Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff- appellee. Appeal from the United States District Court for the Middle District of Florida. Before Wispom, Stmpson and Rowey, Circuit Judges. Srmpson, Circuit Judge: This appeal requires us to review for the second time the conviction upon income tax related charges of Frank Ragano, a Florida attorney. See United States v. Ragano, 5 Cir. 1973, 476 F.2d 410. A description of the prior pro- ceedings before the district court and on appeal is essen- tial to an understanding of the issues raised by the present appeal. The appellant was charged in a three count indictment returned July 14, 1971, with tax evasion and false swear- ing. Count 1 charged him with tax evasion in his 1967 tax return in failing to report taxable income of $180,022.20, in violation of Title 26, U.S.C., Section 7201." Count 2 charged appellant with knowingly making a false declara- tion of income, under penalty of perjury, in his 1967 tax return, in that he knowingly received substantial income in excess of that reported, in violation of Title 26, U.S.C., 1 § 7201. Attempt to evade or defeat tax Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both, together with the costs of prosecution. 24a Section 7206(1).? Count 3, related to Ragano’s tax return for the calendar year 1968 and charged that he knowingly made a false declaration that he had sold for $230,022.20 certain shares of stock in Two Seasons, Inc., obtained by him in consideration for a $50,000 promissory note, and in the resulting claim that the income of $180,022.20 was properly treatable as long term capital gain, in violation of Title 28, U.S.C., Section 7206(1). At the trial on these counts the government contended that the receipt by ap- pellant in 1967 of certain shares of stock should have been reported as taxable ordinary income in that year. The appellant maintained that he had purchased the shares in 1967 when he executed the promissory note and that the retransfer of the shares to the original seller was a legitimate capital gain transaction. The jury returned a verdict of not guilty as to Counts 1 and 2 and guilty under Count 3. Appellant appealed his conviction and sentence under Count 3 and this court reversed and remanded. United States v. Ragano, supra. In the prior appeal the reversal rested on two eviden- tiary matters. First, we held that the trial court erred in allowing a tax expert for the prosecution to testify that receipt of the shares of stock by appellant was pay- ment for services. We held additionally that appellant’s Sixth Amendment right of confrontation was infringed by the admission into evidence over objection of testimony that S. A. Rizzo, from whom the stock was obtained, had testified in an unrelated proceeding, to the effect that the * § 7206. Fraud and false statements Any person who— (1) Declaration under penalties of perjury. — Willfully makes and subscribes any return, statement, or other docu- ment, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter;or.... PO eA NE A a I POR le sme ee 6d eee OO 5 ON sate Rete AO A LEB lS Me me ry 25a stock had been given to Ragano for services rendered. United States v. Ragano, supra, 476 F.2d at 415. Prior to the scheduled date of retrial on the original Count 3, a superseding six count indictment was returned against appellant. Count 1 charged appellant and Rizzo ° under Title 18, U.S.C. § 371, with conspiracy to defraud the United States in the collection of revenue, by agreeing to disguise the payment of a ‘‘finder’s fee’’ to appellant as a stock transaction on which he would claim a long term capital gain. Counts 2 and 8 charged appellant with tax evasion and false swearing in his tax return for the calendar year 1966 for failure to report $29,556.22 of in- come, in violation of Sections 7201 and 7206(1). Counts 4 and 5 chaged Ragano with tax evasion and false swear- ing in his tax return for the calendar year 1968 by failing to report income of $35,645.44, in violation of Sections 7201 and 7206(1), Count 6 charged Rizzo with a 7206(1) offense, respecting his 1969 return’s treatment of the Two Seasons stock delivered to Ragano. Count 6 was severed prior to trial and later dismissed. Note 3, supra. Appellant moved to dismiss the indictment on grounds of former jeo- pardy and collateral estoppel. The district court denied appellant’s motion, finding that the offenses charged in the superseding indictment were not identical to those in Counts 1 and 2 of the original indictment, and that no issue of fact as to any count of the superseding indictment could be said to have been resolved in appellant’s favor at the first trial. A jury found appellant guilty of all five counts, and he was sentenced to five years imprisonment on each of Counts 1, 2, and 4, and to three years imprison- ® Rizzo’s motion to sever the charges against him was granted prior to trial. Subsequently, Rizzo’s motion to dismiss the indict- ment as to him as granted, for reasons unrelated to this appeal. * Appellant first moved for dismissal of Count 5 on the ground that he was denied a speedy trial. Subsequently, he enlarged his collateral estoppel contention te include Count 5. 26a ment on each of Counts 3 and 5. All sentences were direct- ed to be served concurrently, execution of the sentences was suspended, and appellant was placed on three years probation.’ v Tue Unpertyixne Facts The facts involve a complicated series of transactions. We delineate them in the view most favorable to the gov- ernment. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704. In 1964 or 1965 Salvatore A, Rizzo, also known-as Sam Rizzo, approached Ragano to seek his assistance in obtaining a five million dollar loan from the Southeast and Southwest Areas Pension Fund of the International Brotherhood of Teamsters (Pension Fund). Appellant agreed to assist Rizzo, and traveled to Chicago on several occasions to discuss the proposal with trustees of the Pension Fund. He did not, however, for- mally represent Rizzo at the Pension Fund meetings at which the loan was discussed. For his assistance in obtain- ing loans of this type, appellant would in common practice he entitled to a ‘‘finder’s fee’’ of 5% of the loan proceeds from the recipient of the loan. The Rizzo loan application was submitted to the Pension Fund on February 9, 1965, and approved on March 3. On January 29 of that year ar- ticles of incorporation were approved for Two Seasons, Ine., a Florida corporation, organized for the purpose of acquiring and developing real estate. On the same date that * The government stipulated prior to trial that the second trial would constitute a retrial for sentencing purposes within the meaning of North Carolina v. Pearce, 1969, 395 U.S. 711, 89 S.Ct. 2072, 25 L.Ed.2d 656. Thus, if convicted appellant would not be sentenced to a term more severe than had been imposed under Count 3 of the original indictment. “In sworn testimony before a Florida legislative committee ap- peliant testified that a ‘‘finder’s fee’’ of 5 to 10% was normal for the services of an individual for obtaining loans of this kind. On at least two other occasions appellants received similar fees. — 2 ot ee me UB he te Oa ee We re ear ed Jia the loan application was submitted to the Pension Fund the first meeting of Two Seasons was held. Rizzo was elect- ed chairman of the Board and President. All fifty shares of stock in the company were issued jointly to Rizzo and his wife. Appellant received a check for $15,000 from Two Sea- sons on May 11, 1965, which was charged on the company’s books to the ‘‘ Acquisition Costs’? account. A second pay- ment of $10,000 on September 22, 1965 to appellant was charged as a legal expense on the company’s books. From November 15, 1965 through 1967 appellant received amounts ranging up to $30,000 from Two Seasons which were recorded on the company’s books as loans. These loans, however, were neither secured by promissory notes nor was interest provided for or paid on them. By the end of 1967 these loans under the government’s caleu- lations totaled approximately $90,550, of which $30,000 was transferred during the year on the company’s books to the ‘‘Legal Expense and Land Acquisition Costs’’ ac- count, leaving a loan balance of $60,550. During this same period of time Ragano began bor- rowing funds from two banks. In November 1966 and March 1967 he borrowed $25,000 and $30,000, respectively, from the County National Bank of North Miami Beach. At the beginning of 1965 Ragano owed a balance of $16,- 500 to the Central Bank of Tampa on an existing loan. Between February 1965 and October 1967, eight additional loans were obtained by him from that bank in amounts ranging between $2,500 and $12,500. Although, interest was paid through September 1967, no principal payments were made on any of these loans after September 1967, except for payments on an installment loan and three pay- ments totaling $1,755.45 on two others. The outstanding balance on these loans as of September 1967 was $43,000. During that same month an emplovee of Two Seasons, Sheldon Kay, was requested by Rizzo to obtain a $10,000 28a loan from the County National Bank, which Rizzo would guarantee, the proceeds to be paid to appellant. On January 3, 1967, Rizzo transferred 20 shares (40% ) of Two Seasons stock to Ragano in exchange for appel- lant’s execution of an unsecured, non-interest bearing, demand note in the amount of $50,000. No principal or interest payments were made on this note prior to its ean- cellation by Rizzo in 1968, At the second trial the govern- ment introduced expert testimony showing that the fair market value of the shares on the date of transfer to ap- pellant was $400,000 to $600,000.7 On the same day that this transaction occurred, appellant was elected vice pres- ident of the company and named to the three member board of directors. The certificate representing the twenty shares held by appellant was retransferred to Rizzo on March 24, 1967, and on November 6, 1967 two certificates of ten shares each were issued to appellant. In March 1967, but as of January 3, 1967, appellant in connection with a loan application filed with the County National Bank listed his assets to include the twenty shares of Two Seasons stock valued at $2.288,- 000. However, neither the $50,000 demand note held by the Rizzos ner any of the loans on the Two Seasons books were listed among his liabilities. In December 1967, appellant delivered ten shares of the Two Seasons stock to the County National Bank as secur- ity for his outstanding loans. The bank was instructed by appellant to deliver the stock certificate to the person des- ignated at the time the loans were repaid. On approximate- ly January 2, 1968, appellant went to the County National Bank and introduced Louis Galliano to the bank officers. Mr. Galliano procured a loan from the bank nominally in the name of Assured Home Improvement Co., which was * Appellant in a loan application listing his assets and liabilities as of January 3, 1967 valued the 20 shares at $2,288,000. —— a a - 29a secured by the same ten shares of stock which the bank already held as security for the loans of appellant, The $30,000 proceeds of this loan were delivered to appellant who used $10,000 of this amount to retire the loan taken out by Sheldon Kay the previous September. At the con- clusion of this transaction Frank Ragano had received payments of approximately $250,000, 5% of $5,000,000, from Two Seasons and the various bank loans. Appellant and Rizzo on January 2, 1968, executed a shareholders’ agreement providing that if either stockhold- er pledged his stock as security for indebtedness and that indebtedness came into default, the remaining stockholder would have the right to pay the obligations, to redeem the stock pledged, and assume full ownership of it. By a hand- written codicil (so labeled) to this agreement dated Jan- uary 12, 1968, the appellant assigned the 20 shares to Riz- zo **in consideration for the said S. A. Rizzo assuming the present indebtedness of the undersigned to the Cen- tral National Bank of Tampa, Florida, and the County Bank of North Miami Beach, Florida, and also holding the undersigned harmless and no longer indebted to the said corporation [Two Seasons] for loans made by the said corporation to the undersigned.’’ The codicil did not men- tion the January 1967 promissory note given by Ragano to the Rizzos, although it was apparently canceled by this transfer. Subsequently, on April 18, 1968, Rizzo paid the $68,000 balance on all of the County National Bank loan accounts and received the ten shares appellant had pledged as se- curity. The certificate for the other ten shares remained in appellant’s possession until mid-August 1968, when he delivered it to the Central Bank of Tampa, with instrue- tions to deliver it to the person paying off his loan bal- ances at that bank. On August 20, 1968, Rizzo sent an em- ployee of Two Seasons to that bank with a check in the amount of $51,108.12 to pay the full balance on appellant’s nine accounts and to take possession of the stock certifi- cate. Subsequently, the two ten-share stock certificates were canceled and a replacement certificate was issued to Rizzo. In September 1968 Rizzo caused the loan balances on the books of Two Seasons in appellant’s name to be trans- ferred as loan receivables from him. DovusLe JEOPARDY On this appeal Ragano bases his primary challenge to his conviction upon the protections of the double jeopardy clause of the Fifth Amendment to the Constitution. First, he contends that by appealing his conviction for false swearing in his 1968 tax return (Count 3 of the orig- inal indictment and Count 5 of the subsequent indictment) he consented to be retried only under the particular theory and factual characterizations urged by the the government at the first trial. The record of the first trial indicates that the government prosecuted appellant on the theory that although the sale of the stock to Rizzo in 1968 was a valid long term capital gain transaction, the original receipt of the stock by appellant was income in that it was trans- ferred to him in lien of a ‘‘finder’s fee.’’? Therefore, it should have been reported by him as income in his 1967 tax return. Prior to the retrial on Count 3, of the original indictment, the government in re-evaluating the evidence * in light of the jury’s verdict and the trial judge’s® com- *The government concedes on this appeal that the theory on which it based the subsequent indictment was considered and re- jected by the government prosecutors prior to the original indict- ment, * The trial judge at the first trial in a conference with the attor- neys noted that the jury might rejeet the government’s characteri- zation of the case, as well as the defendant’s defense: ‘The Court: But that [the value of the shares received by appellani} is for the jury to determine. Let me say this other thing too. The jury can conclude that he is going to get 5 ee ee ny RE te. 3la ments at the first trial decided to seek a subsequent indict- ment, based on a different theory than urged by the gov- ernment at the first trial, Thus, at the retrial the govern- ment attorneys characterized the stock transaction as a sham used to disguise the payment to appellant of a ‘‘find- er’s fee’’ in the form of loans, and that those loans were income to the appellant and on which income taxes were due and owing. Appellant contends that this shift on the part of the government in its presentation of its case was improper, and precluded by the double jeopardy clause, both as to the retrial on the original Count 3 conviction and on the additional counts alleged in the subsequent indict- ment. [1] Appellant’s argument as to the retrial on Count 3 of the original indictment (Count 5 of the subsequent in- dictment) entirely overlooks the right of the government to retry a defendant for the same offense after the reversal of a prior conviction. It is a hornbook principle that when a defendant by a successful appeal secures a reversal of a criminal conviction, a later retrial for the same offense does not twice put him in jeopardy. United States v. Jorn, 1971 400 U.S. 470, 484, 91 S.Ct. 547, 27 L.Ed.2d 543; United States v. Ewell, 1966, 383 U.S. 116, 124-25, 86 S.Ct. 773, 778-79, 15 L.Ed.2d 627, 633; United States v. Panzavecchia, 5 Cir. 1971, 446 F.2d 1293, cert. denied 1971, 404 U.S. 966, 92 $.Ct. 348, 30 L.Ed.2d 286. The rationale for this rule has been stated by the Supreme Court as: percent fee on the loan, and that the stock was just a vehicle to try to get capital gain treatment with it because when he did sell it, it was worth far more than—whatever it was he got for it, if he really owned it. I think that they can draw those inferences. * * * * * * * * * The jury can infer from the fact that this fellow sold him stock for nothing, and the way they handled the certificate, that is just a charade, the stock was ....’’ ee Oe Te aera 32a Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punish- ment because of any defect sufficient to constitute re- versible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of im- proprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves de- fendants’ rights as well as society’s interest. United States v. Tateo, 1964, 377 U.S.9463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448, 451; See also United States v. Ewell, supra, 383 U.S. at 121, 86 S.Ct. at 777, 15 L.Ed.2d at 631. [2] Ragano insists nevertheless that the doctrine of col- lateral estoppel bars the government from adopting for purposes of retrial, following prior conviction, a different theory of the case than that relied upon at the original trial. Ashe v. Swenson, 1970, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, is the asserted authority for this contention. The Supreme Court held in Ashe that the doctrine of col- lateral estoppel was intertwined with the constitutional guarantee against double jeopardy. That case denied the right to try Ashe for armed robbery in one of six partici- pants in a poker game following his acquittal at an earlier trial for robbing another participant in the same game. The Supreme Court found that the only rationally conceivable issue before the jury in the earlier trial was whether the defendant had been one of the robbers, and the jury verdict in that trial showed that he had not. Thus, in the second trial the same issue was before a second jury with the iden- Oe ee ey 33a tity of the victim the only change. The Court said the see- ond trial was precluded by the not guilty verdict on the earlier charge, and that collateral estoppel prohibited the relitigation of facts previously determined in the defend- ant’s favor. The Court stated that the doctrine of collater- al estoppel was: simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same par- ties in any future lawsuit. Id. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475 (emphasis added). [3] The doctrine of collateral estoppel as delineated in Ashe thus deals with facts not theories. See United States v. Kehoe, 5 Cir. 1975, 516 F.2d 78, 84 at n. 8. United States v. Smith, 5 Cir. 1973, 470 F.2d 1299. Nonetheless the ap- pellant stresses language in Ashe condemning the prosecu- tion in that case for using the first trial as ‘‘a dry run for the second prosecution.’’ Jd. at 447, 90 S.Ct. at 1196, 25 L.Ed.2d at 477. We hold that Ashe has no applicability in the circumstances of this case to the retrial of the charges in Count 3 in the original indictment following the rever- sal of the prior conviction on that count. What and all that the decision in Ashe condemned was the government’s retrial of ultimate facts which had previously been decided in a defendant’s favor. The case decided nothing respect- ing the government’s right to alter its theory of the evi- dence in a case at a retrial following reversal of a prior conviction for the same offense. So restricting the prosecu- tion from proceeding upon a new legal theory at retrial would erode severely the goals served by permitting re- trial of a criminal defendant after the reversal of a con- viction. The argument fails. [4] The second theory Ragano advances as to double jeopardy is that the government was barred by the prior 34a prosecution from indicting him in a subsequent indictment on charges not contained in the original indictment. Spe- cifically, tax evasion and false swearing in his 1966 tax return (Counts 2 and 3), tax evasion in his 1968 tax return (Count 4), and conspiracy to defraud the government in the collection of revenue (Count 1). We need go no further than to consider this claim as it relates to the conspiracy count. The trial court imposed concurrent five year sen- tences under Counts 1, 2 and 4, and two concurrent three year sentences under Counts 3 and 5. Under the concur- rent sentence doctrine if the conviction is sustained as to the conviction under Count 1 (one of the counts as to which concurrent sentences were imposed) it is unneces- sary to determine the legality of the conviction under the remaining counts. United States v. Stone, 5 Cir, 1973, 472 F.2d 909; United States v. Rector, 5 Cir. 1973, 488 F.2d 1079; United States v. Vigo, 5 Cir. 1970, 4385 F.2d 1347. Cf. Benton v. Maryland, 1969, 395 U.S. 784, 791, 89 S.Ct. 2061, 23 L.Ed.2d 707. [5, 6] Preliminary to a discussion of Count 1 we empha- size the Supreme Court’s observation that ‘‘[c]onspiracy is not the commission of the crime which it contemplates, and neither violates nor ‘arises under’ the statute whose violation is its object.’’ Braverman v. United States, 1942, 317 U.S. 49, 54, 63 S.Ct. 99, 102, 87 L.Ed. 23, 28. See also Callanan v. United States, 1961, 364 U.S. 587, 593, 81 S.Ct. $21, 325, 5 L.Ed.2d 312, 317. We have consistently held that the commission of a substantive offense and entering a conspiracy to commit that offense are separate and dis- tinct, and that ordinarily a person may be convicted of and sentenced for both. United States v. Marshall, 5 Cir. 1975, 513 F.2d 274; United States v. Jasso, 5 Cir. 1971, 442 F.2d 1054, 1056, cert. denied 1971, 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 81. Aecord, United States v. Jackson, 10 Cir. 1973, 482 F.2d 1167, cert. denied 1974, 414 U.S. 1159, 94 $.Ct. 918, 39 L.Ed.2d 111. a i ik i 35a In Jasso, supra, the defendant was reindicted and con- victed after an appeal on which the government confessed error at the original trial. In addition to the three sub- stantive marijuana smuggling counts contained in the orig- inal indictment, the new indictment charged Jasso and others with conspiring, in violation of Title 26, U.S.C. § 176(a), to smuggle, transport and conceal marijuana. We rejected Jasso’s argument that the double jeopardy clause barred inclusion of th: conspiracy count in the new indict- ment, stating: ‘‘[t]he government could have charged con- spiracy at any time within the statutory limitation period without regard to any existing indictment for the marijua- na offenses. An indictment for a new and different crime is clearly not double jeopardy.’’ 442 F.2d at 1056. To like effect in Marshall, supra, a defendant was indicted for conspiracy to possess cocaine with intent to distribute and to cause distribution. The indictment alleged 27 overt acts, seven involving the defendant. Three of the seven had served as the basis for three substantive counts of an earlier indictment to which the defendant had entered guilty pleas. On appeal from conviction of the conspiracy charge the defendant urged that the conspiracy indictment, in light of his guilty plea to the earlier charges, infringed his double jeopardy rights, and precluded any effective de- fense on his behalf. We rejected each of these arguments noting that the substantive offenses and the conspiracy offense were separate chargs requiring ‘‘distinct elements of proof.’’ Appellant, however, maintains that the ‘‘same transac- tion’’ definition of ‘‘same offense’’ in the double jeopardy clause, barred the government from indicting him on the conspiracy count since it was not contained in the original indictment. This argument stems from the view advanced by the concurring opinion in Ashe of Justice Brennan, joined by Justices Douglas and Marshall, that the double jeopardy clause requires the government to join in one trial all charges against a defendant that grow out of a 36a single criminal act, occurrence, episode, or transaction. Ashe, supra, 397 U.S. at 453-54, 90 S.Ct. at 1199-1202, 25 L.Ed.2d at 481. The government responds that the ‘‘same transaction”’ test, as proposed by Justice Brennan, has no application to retrials following the reversal of a prior conviction, since its sole purpose is to restrict the use of multiple trials on closely related charges when the government’s interest could be vindicated in a single trial. lence the government maintains that in the case of retrials after reversal of a prior conviction the government may indict on additional charges since the number of trials has been limited to the fewest possible. [7] We find it unnecessary to decide the applicability of the ‘‘same transaction’’ definition of ‘‘same offense’’ to this case. This cireuit has previously declined to apply the ‘“same transaction’’ definition on the ground that although entitled to some weight the views of only three Justices are not binding. United States v. Marshall, 5 Cir. 1875, 513 F.2d 274; United States v. Smith, 5 Cir. 1978, 470 F.2d 1229; Wingate v. Wainwright, 5 Cir. 1972, 464 F.2d 209. Accord Brown v. Hendrick, 3 Cir. 1970, 431 F.2d 436, 440, cert. denied 1971, 402 U.S. 976, 91 S.Ct. 1677, 29 L.Ed.2d 141; Moton v. Swenson, 8 Cir. 1973, 488 F.2d 1060; United States v. Fusco, 7 Cir. 1970, 427 F.2d 361. EvIpENTIARY RULINGS Appellant next challenges his conviction on the grounds that the trial court erred in receiving in evidence certain corporate documents and tax return [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1760%3A1. Public record. Not legal advice.