James William Yawn, Appellant, v. United States of America, Appellee, 244 F.2d 235 (5th Cir. 1957)

Appellant, convicted below of conspiracy to violate the Internal Revenue Code by unlawfully possessing and controlling distilling apparatus and distilled spirits, and engaging in the business of a distiller without paying taxes thereon, is here insisting that a reversal is required principally because one of ten overt acts allegedly committed in furtherance of the conspiracy had been judicially determined against the Government and in favor of appellant in a former trial. Overt act November 9 of the one-count indictment was an allegation of joint possession by appellant and two alleged coconspirators December 3, 1953, of an unregistered distillery located in a dwelling house on Chapman's Road in Duval County, Florida. The week preceding the instant conspiracy trial, appellant had been acquitted¹  by a jury of the substantive charge of possession, 26 U.S.C.A. § 2810 (since recodified), of the identical still at the identical time and place.

There can be no question but that the doctrine of res judicata is applicable to criminal trials. Sealfon v. United States, 332 U.S. 575, 68 S. Ct. 237, 92 L. Ed. 180. While res judicata is related to double jeopardy and in certain cases may have an identical effect, Sealfon v. United States, supra; Ehrlich v. United States, 5 Cir., 145 F.2d 693; Cosgrove v. United States, 9 Cir., 224 F.2d 146, it may have determining effect in situations where double jeopardy is unquestionably inapplicable. United States v. Oppenheimer, 242 U.S. 85, 37 S. Ct. 68, 61 L. Ed. 161. In general, the doctrine "operates to conclude those matters in issue which the verdict determined though the offenses be different." Sealfon v. United States, supra [68 S. Ct. 239]. This Court has phrased it, "A question or issue determined by a prior acquittal may not be relitigated in a criminal proceeding against the same person." Williams v. United States, 5 Cir., 179 F.2d 644, at page 650, affirmed on other grounds United States v. Williams, 341 U.S. 70, 71 S. Ct. 581, 95 L. Ed. 758.

In the present case the Government had, and has, every right to establish the guilt of the accused of the separate offense of conspiracy to violate the liquor tax laws despite the acquittal of unlawful possession of the still. Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489. But to allow the Government to have a second opportunity to establish the precise fact of possession decided by another Court of competent jurisdiction in favor of the accused is to ignore the rule that "* * the same facts can not be twice litigated by the same sovereign against the same defendant." Serio v. United States, 5 Cir., 203 F.2d 576, at page 578, certiorari denied 346 U.S. 887, 74 S. Ct. 144, 98 L. Ed. 391. We hold that the Government was precluded as a matter of law under these circumstances from making such an attempt.²  United States v. DeAngelo, 3 Cir., 138 F.2d 466, cited with approval by the Supreme Court in Sealfon v. United States, supra, and by this Court in Williams v. United States, supra. And to ascribe a different legal meaning to "possession" is litigated in the first trial from "possession" litigated in the second would be an exercise in semantics unwarranted in this fact situation both in law and in reason, cf. United States v. Williams, 341 U.S. 58, 71 S. Ct. 595, 95 L. Ed. 747; United States v. Adams, 281 U.S. 202, 50 S. Ct. 269, 74 L. Ed. 807; United States v. Morse, D.C.N.Y., 24 F.2d 1001; see United States v. McConnell, D.C.Pa., 10 F.2d 977. Nor can it be doubted that the erroneous admission of the questioned evidence over vigorous and timely objection was harmful to the defendant in this trial.

While unnecessary, strictly speaking, under the view we have taken as to this issue of the case which requires that the case be remanded for a new trial, we have examined the other assignments of error and find them without merit.

Reversed and remanded.

TUTTLE, Circuit Judge (specially concurring).

I concur in the decision here, but believe it appropriate to note a somewhat different approach to the result. I think it not erroneous for the court to have permitted in the circumstances of this trial the introduction of the evidence complained of.¹  Any evidence that would tend to identify Yawn with the other conspirators in the carrying on of the business of distilling liquor is, I think, relevant, and it cannot be said that the verdict of acquittal decided either that Yawn did not run from the house or that there was no still there. The verdict of acquittal is not the finding of any single affirmative fact. Nonetheless, under the ruling of the Supreme Court in the Sealfon case, proof of the facts alleged in the overt act in the conspiracy case cannot be permitted to establish the overt act on which conviction of conspiracy must depend when there has been an acquittal on the same facts charged in a substantive count. If here, in other words, the court had admitted the evidence on the question of the existence of the conspiracy and furtherance of other overt acts of the indictment and had charged that overt act number 9 could not be the basis of a conviction, there would have been no error.

Although the defendant took no exception to the charge as given and did not request the suggested charge, it is clear that all parties to the proceeding fully understood the issues and the defendant's counsel had fully sought protection of the defendant's rights in this regard. The failure to charge was plain error of which we can take note and I agree that the error was prejudicial.