Lloyd J. Cosgrove and Paul v. Doyle v. United States

The application of the principle of res judicata is the chief question in this case.

1. The Indictment

The indictment was returned on April 15, 1952. Count 1 recited that the appellant Doyle was a Deputy Collector of Internal Revenue in San Francisco, California, and that the appellant Cosgrove, also of San Francisco, was the attorney for persons required by law to file United States estate tax returns in connection with the estates of Luigi Ferrari, Paul Fontana, and Mario Ferrando. Count 1 contained the following other allegations :

Ferrari, Fontana, and Ferrando died on August 2, 1946, December 1, 1946, and April 20, 1947, respectively, and left taxable estates in connection with which returns were required by law to be filed on or before December 2, 1947, March 1, 1948, and July 20, 1948, respectively.

Beginning on November 15, 1947, and continuously thereafter until the filing of the indictment, the appellants conspired with each other and with other *148 persons to the grand jury unknown, to defraud the United States and to commit offenses against it, towit:

This conspiracy count sets forth nine overt acts, including an allegation that the appellant Doyle “did stamp and…

(concurring in part and dissenting in part).

This is an unusually simple case on its facts. It involves three estate tax returns prepared by appellant Cosgrove for three of his clients. Cosgrove filed these returns, with remittances, in the office of the Internal Revenue Collector at periods varying from seven months to seventeen months after the date they were due under the relevant revenue statute. In each instance appellant Doyle, a deputy collector, stamped the returns as having been received with remittances as of the date they were due. A money penalty is exacted by the statute for the late filing of such returns.

A single indictment was found by the grand jury accusing both Cosgrove and Doyle of offenses predicated on the aforementioned activities. In count one the two were charged jointly with conspiracy to defraud the government of the penalties. Count two charged them jointly with feloniously covering up the late filing by the trick and device of predating. There were six other counts, accusing the two men separately. Three of these charged Cosgrove with feloni-ously aiding and abetting Doyle in the predating of the returns. Three charged Doyle with feloniously…

(dissenting).

For the reasons stated by me in the original majority opinion, I dissent from the present opinion on rehearing.

I do not believe that the distinction between a conspiracy to commit a crime, on the one hand, and a unilateral offer of an opportunity to another to commit that crime, oh the other hand, “affronts reason”.

The law is full of salutary distinctions that the courts are required to observe. I believe that the distinction in question is one of them.

The. judgment should be affirmed as to the appellant Doyle.

224 F.2d 146 Lloyd J. COSGROVE and Paul V. Doyle, Appellants, v. UNITED STATES of America, Appellee. No. 13626. United States Court of Appeals Ninth Circuit. June 18, 1954. On Rehearing June 22, 1955. Joseph L. Alioto, James E. Burns, William C. Danielson, San Francisco, Cal., for appellants. Warren Olney, III, Asst. Atty. Gen., Rex A. Collings, Jr., Sp. Asst. to Atty. Gen., Washington, D. C., Lloyd H. Burke, U. S. Atty., John Lockley, Asst. U. S. Atty., San Francisco, Cal., for appellee. Before HEALY, ORR and LEMMON, Circuit Judges. LEMMON, Circuit Judge. 1 The application of the principle of res judicata is the chief question in this case. 1. The Indictment 2 The indictment was returned on April 15, 1952. Count I recited that the appellant Doyle was a Deputy Collector of Internal Revenue in San Francisco, California, and that the appellant Cosgrove, also of San Francisco, was the attorney for persons required by law to file United States estate tax returns in connection with the estates of Luigi Ferrari, Paul Fontana, and Mario Ferrando. Count 1 contained the following other allegations: 3 Ferrari, Fontana, and Ferrando died on August 2, 1946, December 1, 1946, and April 20,…