US SUPREME COURT DECISIONS

In 1953, petitioner and one Seijas were indicted for conspiring from 1942 to 1953 to attempt to evade income taxes of Seijas and his wife for the years 1942 through 1945. Petitioner contended that the conspiracy was consummated in 1946, when the return for 1945 was filed, and that prosecution was barred by the 6-year statute of limitations, and he requested and obtained instructions that the jury must acquit him unless it found that there was a subsidiary conspiracy, continuing to within 6 years of the indictment, to conceal the first conspiracy. He was convicted. On appeal, the Court of Appeals reversed on the ground that a subsidiary conspiracy cannot extend the statute of limitations which had run against the main conspiracy, and it ordered the case remanded with directions to enter a judgment of acquittal. On rehearing, however, it decided that petitioner might have been tried on the theory that the original conspiracy continued until 1952, and it ordered the case remanded for a new trial.

Held: this did not subject petitioner to double jeopardy in violation of the Fifth Amendment. Pp. 361 U. S. 417-426.

(a) The theory on which the case was tried and upon which an instruction should have been given was that there was a continuing conspiracy from 1942 to 1953 to evade income taxes by concealing income, and that this objective was not consummated in 1946 when the 1945 return was filed. Pp. 361 U. S. 422-424.

(b) The fact that the Court of Appeals had originally ordered entry of a judgment of acquittal did not deprive it of the power to amend that direction on rehearing and order a new trial, in the exercise of its power under 28 U.S.C. § 2106 to "require such further proceedings to be had as may be just under the circumstances." P. 361 U. S. 424.

(c) Petitioner's conviction having been set aside on his appeal, he was not subjected to double jeopardy by the action of the Court of Appeals in ordering a new trial, on rehearing, after having previously directed entry of a judgment of acquittal. Sapir v. United States, 348 U. S. 373, distinguished. Pp. 361 U. S. 425-426.

261 F.2d 181, 264 F.2d 955, affirmed. chanrobles.com-red

Page 361 U. S. 417