William R. Forman v. United States

Upon petition for a rehearing the United States asks us to modify our decision by ordering the cause remanded to the district court for a new trial.

We think this suggestion is a proper one. In our opinion we accepted the position taken by the court below in its instructions that the conspiracy charged “was consummated upon the filing of the individual tax returns.” We then proceeded, upon the authority of Grünewald v. United States, 353 U.S. 391 , 77 S.Ct. 963 , 1 L.Ed.2d 931 , to hold that the case had been improperly submitted to the jury with instructions that there might be a conviction if it was a part of the conspiracy “to make continuing efforts to avoid detection and prosecution.”

The Government concedes that the case was submitted to the jury on an impermissible theory but says that as in the Grünewald case, the indictment here presented an alternative theory. That alternative theory, closely paralleling the alternative legal theory in the Grünewald case, which the Supreme Court held “unexceptionable” is based upon the allegations of paragraph “D” of the indictment quoted in our opinion which charges that the conspiracy was one “to violate * * * § 145(b) of the…