RESPONDENT: United States
LOCATION: Superior Court of Bibb County
DOCKET NO.: 43
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 361 US 416 (1960)
ARGUED: Nov 19, 1959
DECIDED: Feb 23, 1960
Facts of the case
Media for Forman v. United States
Audio Transcription for Oral Argument - November 19, 1959 in Forman v. United States
Number 43, William R. Forman, Petitioner, versus United States.
Solomon J. Bischoff:
Chief Justice --
Solomon J. Bischoff:
-- may it please the Court.
The -- this case presents for consideration of the Court, two issues.
One involves the application of the Double Jeopardy Clause of the Fifth Amendment under the facts in this case and the other involves the application of the Statute of Limitations in criminal conspiracy cases.
The -- briefly the -- with respect to the first issue, the record's facts are that the petitioner was indicted with another one named Seijas for conspiracy to violate the Section 145 of the Internal Revenue Code, that is that conspiracy to attempt to evade the tax.
The precise method of attempted evasion was described in two -- four subsections; one, merely alleges that they conspired to evade without designating or describing any means by which they would attempt to do so and the second subdivision (d) describes a sort of a hybrid violation.
It's – it alleges that they conspired to evade -- to violate Section 145 (b), the tax evasion statute and 1001 of the Criminal Code, the false statement statute, conjunctively.
And -- but they conspired to do so by making false statements and presenting false records to revenue officials.
Now, the -- the defendant was tried alone on this conspiracy charge and was found guilty and sentenced.
He appealed to the Court of Appeals for the Ninth Circuit where the conviction was reversed with directions to enter a judgment of acquittal.
And that was predicated upon the defense which the petitioner urged throughout the case that the case was barred -- prosecution was barred by the Statute of Limitations.
The -- the determination of that question as the case developed and I will describe it a little more in detail later, briefly it turned upon the question whether there existed in the case evidence of the subsidiary conspiracy to -- to -- which would prolong the operation of the Statute of Limitations of the character that had been described in the Krulewitch and Grunewald cases.
And the Court of Appeals determined that there was no evidence of the character and type of agreement that was found necessary to prolong the Statute of Limitations in those two cases and consequently the -- directed the judgment of acquittal, said that the -- that the -- it was error to submit the case to the jury.
Now, after that decision was rendered, the Government filed what it denominated a petition for a rehearing, but which we, the petitioner contends, was not a petition for a rehearing in legal contemplation, although so denominated that it presented to the Court a -- new issues for determination upon which it thought they should have another trial.
It presented a -- an issue which they called an alternative theory which it said could have been submitted to the jury and the case would have been tried upon that alternative theory.
And they did not challenge the correctness of the one conclusion or the one issue which the Court of Appeals decided, namely that there was no evidence to sustain the conviction on the theory upon which the case was tried and submitted to the jury.
They didn't ask that the reversal shall be set aside.
It only asked that instead of directing the judgment of acquittal, that the opinion should be modified to direct a new trial.
And the Court of Appeals, in its modifying opinion, merely determined that there was evidence on the record which would have sustained this so-called alternative theory and the case might have been tried on that alternative theory.
That was the language of the modification opinion.
Your Honor will find it at -- in the record at page 1936 to 1937.
The Court concluded and said, “It now appears to us that the case might have been tried upon this alternative theory, namely, that the conspiracy continued past the filing of the returns for the purpose of protecting the tax -- taxpayers from tax prosecution.”
Now, it -- the Court did not say that it was at the -- that they found that it had -- was an error in his formal conclusion that there was lack of evidence.
It didn't -- that they had -- no contention was made on that respect and it didn't make such a finding.
And this new theory was one that was presented to the Court of Appeals for the first time in this petition which they call the petition for a new trial, but which -- before a rehearing, but which we say is an original petition for a new trial.
Charles E. Whittaker:
But right now, it's the original proceeding in the Court of Appeals you say?
Solomon J. Bischoff:
Yes, we say in legal effect it was a -- an original proceeding in the Court of Appeals and I say it was a legal effect of that as such an original proceeding, because the case was not tried on this so-called alternative theory.
The Government took no exceptions to the theory upon which the case was submitted to the jury, didn't object to those -- to that theory.