Before BIGGS, Chief Judge, and McLAUGHLIN and O'CONNELL, Circuit Judges.
O'CONNELL, Circuit Judge.
Eugene Curzio, who is the appellant before us, and three others - Portella, Zeoli, and Danzo by name - were indicted on a charge of conspiracy "to commit offenses against the United States by wilfully and unlawfully acquiring, possessing, controlling and transferring counterfeited ration documents, to wit, counterfeited gasoline, meats-fats and shoe ration stamps and coupons." In connection with this conspiracy, the indictment recited three overt acts: (1) that Zeoli transferred 400 counterfeited gasoline ration coupons to Portella on June 30, 1945; (2) that appellant transferred 400 counterfeited gasoline ration coupons to Portella on June 20, 1945; and (3) that on August 22, 1945, Curzio "wilfuly and unlawfully acquired, possessed and took custody of and caused to be acquired, possessed, and taken into custody" about two million counterfeited meats-fats and 8,064 counterfeited shoe ration stamps.The case was tried before the court without a jury. When the government rested its case, counsel for Zeoli, Danzo, and Curzio moved for a directed verdict of not guilty.*fn1 The court ruled as follows: "Gentlemen, I will say that this case is absolutely lacking in the essentials that go to constitute conspiracy * * * this is not a case of conspiracy. The indictment is, unfortunately, not well chosen. These cases [the overt acts] indicate, by the very acts, that they are isolated cases. There are no facts and circumstances which would warrant a jury in finding that there had been an agreement among the parties to violate the law. There is testimony to the effect, if the Government witnesses are to be believed, that might indicate to a jury that there was unanimity in the three*fn2 defendants doing a certain thing, but they are overt acts independent in their commission, although the rewards might benefit all mutually, but there is no evidence as to that." At a later point, the judge added, "The substantive offenses may be entirely different, because these overt acts are pretty substantial." Eventually, the judge ordered entry of a verdict of not guilty as to all four defendants.
Appellant had also been indicted separately on four counts: (1) illegal possession of 400 gasoline ration coupons on July 20, 1945; (2) possession with intent to utter 400 counterfeited gasoline ration stamps, on the same date; (3) possession of about two million counterfeited meats-fats and 8,064 counterfeited shoe ration stamps on August 28, 1945; and (4) possession with intent to utter about two million counterfeited meats-fats and 8,064 counterfeited shoe ration stamps on August 22, 1945. Brought to trial before a jury on this indictment after his acquittal of the conspiracy charge, appellant was found guilty on the last two counts.*fn3 The instant appeal has been taken.
The first question for our consideration is whether, as appellant contends, his acquittal of the conspiracy charge is res judicata of the offenses charged in the third and fourth counts of the instant indictment. We hold in the negative.
Sealfon v. United States, 1948, 332 U.S. 575, 68 S. Ct. 237, the case upon which appellant relies, poses no obstacle to appellant's subsequent trial and conviction of the substantive offenses. In that case, Sealfon had been indicted twice, once on a charge of conspiracy to defraud the United States and secondly on the substantive charge of uttering and publishing false invoices as true.The conspiracy indictment was tried first. The evidence disclosed that Sealfon concededly wrote and sent to one Greenberg a letter, in which Sealfon stated that some of the syrup of his company was being sold to the Brooklyn Navy Yard. Sealfon could be found guilty of conspiracy only if this letter had been sent pursuant to an agreement with Greenberg to defraud. The jury returned a verdict that Sealfon was not guilty. Then Sealfon and Greenberg were brought to trial on the substantive offense. At this trial, the theory of the prosecution was that Sealfon had aided and abetted Greenberg in commission of the substantive offense. This could be true, however, only if the prosecution established the same fact as it unsuccessfully attempted to prove at the conspiracy trial; viz., that Sealfon's letter was part of an agreement to defraud. Consequently, the Supreme Court ruled that the second prosecution was barred, because acquittal of the conspiracy charge was a final determination that Sealfon had no such agreement with Greenberg.
The facts before us here are entirely different. Had the conspiracy trial judge, sitting as a jury as well, decided that the prosecution had failed to prove that appellant had possession of the counterfeited meats-fats and shoe ration stamps, we should have a situation comparable to that in the Sealfon case. The conspiracy trial judge, however, was not required to make such a decision, and the extracts from his comments quoted above clearly show that he did not do so. He held only that there was no concert of action between Curzio and his fellow defendants. In fact, the conspiracy trial judge unmistakably inferred that he believed there was ample proof of the commission of the overt acts charged in the conspiracy indictment. In short, the judgment of acquittal in the conspiracy trial was not "a determination favorable to petitioner of the facts essential to conviction of the substantive offense." 332 U.S. at pages 578, 579, 68 S. Ct. at page 239. Since the conspiracy trial did not decide that appellant was not in possession of the counterfeited stamps, we conclude that the res judicata principle did not bar appellant's subsequent trial on the substantive offenses of possession and possession with intent to utter.
Next, appellant has assigned as reversible error that the trial judge, although specifically requested to do so, failed to define "possession". This objection warrants close analysis.
At the trial in the court below, the government offered no testimony that any of the stamps here in question had been seen or found on appellant's person. The theory of the government was that appellant had placed the stamps in a locked closet of a room he rented. In support of this position, the government introduced evidence tending to show that appellant had rented, at $10 per week, a room in the home of a virtual stranger whose price for the room had been $8 per week; that the landlord had not seen appellant occupying the room as living quarters, but that federal agents had observed appellant entering and leaving the building; that, shortly after appellant rented the room, the landlord noticed a lock had been placed on the door of a closet in the room; that, after the federal agents accosted appellant and asked him to accompany them to the room, one of the federal agents found in the vicinity of appellant's path a key which fitted the lock in the closet door; and that the federal agents, acting pursuant to a warrant, found in the closet a box weighing about three hundred pounds and containing the stamps here involved.
Appellant took the stand in his own defense. He alleged substantially that he had never rented the room, and that he at no time entered the home prior to the seizure.
Appellant asked the court to instruct the jury "what possession means under the facts of this case." The prosecution joined in the request, but apparently for the reason that the prosecution wanted the jury to understand that, under the third count of the indictment, an intent to utter was not a prerequisite for a finding of guilt. The court thereupon charged as follows: "The possession of the stamps you could find if you concluded from the evidence that this defendant was in possession of these stamps alone."
Effectually, the court said only that "possession," an integral element of the offenses charged in the third and fourth counts of the indictment, means "possession." In this respect, the charge cannot be considered very enlightening. Under the facts of this case was it incumbent upon the court to spell out the component parts of the word?
Had the jury believed the defense, no such elaboration would have been necessary. In denying all connection with the room in which the stamps were found, appellant perforce took the position that the contents of the closet were unknown to him.
The theory of the prosecution, however, did make it essential that the jury have a clear apprehension of the meaning of the word. To establish appellant's guilt, the government had to prove beyond a reasonable doubt that appellant rented the room.Possession involves power of control and intent to control. Cf. United States v. Russo, 1941, 3 Cir., 123 F.2d 420, 422. The government did introduce sufficient evidence of a circumstantial nature from which the jury, properly instructed, could infer that appellant had such "possession." The difficulty, however, is that the jury was not so instructed. Conceivably, on the basis of the testimony, the jury, without considering the question whether or not appellant had culpable knowledge of the stamps, might have believed conviction necessary, because appellant had rented the room. Under ordinary circumstances the charge of the court as to "possession" would have been sufficient but here the circumstances are ...