(dissenting).
I dissent because, in my view, correct application of the doctrine of res judi-cata to the circumstances of this prosecution requires that an acquittal be directed.
The wrongdoing charged was a scheme to mulct a delinquent taxpayer under pretense of protecting him from governmental action, in the course of which appellant, a deputy collector of the Bureau of Internal Revenue, is said to have solicited and accepted money from the taxpayer. This occurred in 1949. FrOm year to year, from 1950 to 1955, the government obtained a series of five separate indictments in a persistent effort to punish appellant for this misconduct.
Appellant was first indicted, tried and convicted in 1950 on a charge of, accepting money to compromise a complaint of violation of law. But, for reasons to be discussed later, the trial judge thereafter granted a defense motion for judgment of acquittal. The same transaction was the basis of a second indictment in 1952 for illegally accepting compensation, and a third indictment of rather similar tenor a year later. These indictments were dismissed in 1953 and 1954. The fourth indictment to be based on this transaction, this time for conspiracy to defeat income taxes, was handed down in 1955. Later in 1955 a fifth indictment initiated the present prosecution for conspiracy to defraud the United States. A jury found the accused guilty as charged. The court then considered and denied a defense motion for judgment of acquittal which urged that the specific ruling upon which the 1950 acquittal had been based was conclusive and required acquittal in this subsequent prosecution.
This brings us to the identification of the specific matter which was so decided in the first prosecution as to require an acquittal, but was relitigated and decided against the accused as an essential element of the crime charged in the present case. That question is, whether, in the 1949 transaction which was the common evidentiary basis of both prosecutions, the accused was “acting under the authority of any revenue law of the United States.” It was common to both prosecutions because the successive indictments were based on clauses (10) and (4), respectively, of the same subsection, § 4047(e) of the Internal Revenue Code of 1939, which reads as follows:
“(e) Other unlawful acts of revenue officers or agents. Every officer or agent appointed and acting under the authority of any revenue law of the United States—
* * * * * *
“(4) Who conspires or colludes with any other person to defraud the United States; or
* •» * * * *
“(10) Who demands, or accepts, or attempts to collect, directly or indirectly, as payment or gift, or otherwise, any sum of money or other thing of value for the compromise, adjustment, or settlement of any charge or complaint for any violation or alleged violation of law, except as expressly authorized by law so to do—
shall be dismissed from office, shall be fined not less than $1,000 nor more than $5,000, and be imprisoned not less than six months nor more than three years.”
It will be observed that while offenses under clause (4) and clause (10) are different crimes, they, like all other offenses under § 4047(e), have a common element, namely, the requirement, sp stated at the beginning of the subsection as to qualify all of its clauses, that the offender must be an “officer or agent appointed and acting under the authority of any revenue law of the United *556States.” When the existence of this prerequisite status or relationship was challenged on the motion for acquittal after the guilty verdict in the first prosecution, the trial judge wrote an opinion explicitly stating the ground upon which he was directing an acquittal. He said:
“[T]he defendant contends that before an agent of the Bureau of Internal Revenue can be found guilty under Sec. 4047(e) (10) of the Internal Revenue Code, the government must prove that at the time the agent demanded or accepted the money he must be acting under the authority of the revenue laws. Against the motion, the attorney for the government argues that the agent need not be acting under the authority of law at the critical time in order to convict him. In other words, he maintains that the words: 'and acting under the authority of any revenue law of the United States’ in the code means, 'and during his appointment’. We cannot agree. The words of the section are plain. Before an agent can be convicted under it, he must have authority, or at least color of authority, to compromise, adjust or settle the taxpayer’s violation or alleged violation of law.” United States v. Waldin, D.C.1951, 139 F.Supp. 156, 158.
Thus, the accused was acquitted on the specific ground that in the 1949 transaction he was not “acting under the authority of any revenue law of the United States.”
Six years later, when the same factual picture of this individual’s role and status in that transaction was shown as an essential part of the government’s case in the present prosecution, the accused urged the earlier ruling in his favor on the same point as a ground for acquittal. The court, a different judge sitting, again considered the matter on its merits and, disagreeing with the earlier ruling, sanctioned a conviction. The court said:
“In a previous case in this court defendant was charged with and convicted of a violation of subsection (10) of 26 U.S.C.A. former Sec. 4047 in accepting illegally the $20,-000 which apparently the jury in the present case also found that he accepted. The trial judge in the previous case granted judgment of acquittal, United States v. Waldin, D.C.E.D.1951, 139 F.Supp. 156. That acquittal, however, does not protect defendant from a conviction in the present case. In the present case defendant is charged with a conspiracy rather than a substantive crime and an acquittal on a charge of a substantive crime does not preclude a prosecution of a conspiracy to commit the same substantive crime.” United States v. Wal-din, 1957, 149 F.Supp. 912, 915.
The quoted language also seems essentially the position of the majority on this appeal. Its error, as I see it, is in treating a res judicata problem as if it were one of double jeopardy. The fact that the two contradictory rulings of the district court were made in prosecutions for different offenses, albeit based upon the same transaction, has force in preventing the second conviction from offending the constitutional guarantee against twice being put in jeopardy for the same offense. But the reach of res judicata in criminal cases is greater. Even though the successive prosecutions be for different crimes, a ruling favorable to the accused on the facts or the legal significance of a particular transaction in the one prosecution is conclusive in his favor on the same question concerning the same transaction in the second prosecution. See 2 Freeman, Judgments, 5th ed. 1925, § 648; Dangel, Criminal Law, 1951, § 187; Lugar, Criminal Law, Double Jeopardy and Res Judicata, 1954, 39 Iowa L.Rev. 317.
The courts have repeatedly stated this doctrine of res judicata in criminal cases. There is the plain statement in Frank v. Mangum, 1915, 237 U.S. 309, 334, 35 S. *557Ct. 582, 590, 59 L.Ed. 969, that, in criminal cases as well as civil, “a question of fact or law distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties.” So, a ruling, whether right or wrong, that a particular short statute of limitations has barred prosecution for certain misconduct, is res judicata. United States v. Oppenheimer, 1916, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161. True, the well known recent application of res judicata to a prosecution in Sealfon v. United States, 1948, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180, involved an issue of fact. But the burden of the opinion is that res judicata applies to any issue actually decided, without any suggestion that it matters whether the litigants have contested a law point or a matter of evidence. So too, in this circuit, I understand the announced and considered rule to be broadly against the relitigation in a second prosecution of issues or matters of whatever sort actually decided in favor of the accused in an earlier prosecution. United States v. De Angelo, 3 Cir., 1943, 138 F.2d 466; United States V. McConnell, D.C.E.D.Pa.lB26, 10 F.2d 977.
The prosecution, recognizing that it is in difficulty on this score, urges in its brief that so much of the judicially stated and repeated!y restated rule as applies to adjudication which has turned on a point of law is dictum in the cases and, therefore, that we should treat this question as one of first impression.1 Of course, what is ordinarily called a ruling of law on an issue of criminal liability is not a pronouncement of doctrine at large, but a decision as to the legal significance of what happened on a given occasion. And whether the actual dispute concerns the operative facts or the legal rule applicable to them, or both, res judicata, if applicable at all, comprehends the particular matter decided; in this case that the accused did not act under authority of any revenue law in the 1949 transaction. It does not matter whether the controversial factor which determined this ruling was the court’s evaluation of the evidence or its interpretation of the controlling language of the statute. The important thing is that the court ruled that an essential element of the crime, as stated in the statute, had not been established. The existence of that same element of criminality may not later be proved against the accused to subject him to liability for another offense charged on the basis of the same transaction.
We should not be distressed that this rule may occasionally, perhaps this time, permit a wrongdoer to escape punishment. For it is the deliberate choice of our open society to forego easy and sure convictions of crime — such as the police state can guarantee — -in order that the never absent risk of unduly harassing or otherwise oppressive action by government may be minimized. We should rather be concerned that judges not relax the procedural safeguards of our system whatever the record may suggest as to the demerits of the accused.
. This is what the government argues:
“The government concedes that it is unquestionably the law that the prosecution may be prohibited by the doctrine of res judicata from proving facts which were conclusively determined adversely to the prosecution by the verdict of the jury in a previous trial for a different offense arising out of the same transaction. We are not prepared, however, to admit that the same rule is applicable with respect to questions of law decided by the Court in an earlier proceeding. We are familiar with dicta in a long line of cases beginning with Frank v. Mangum, supra, which say that res judicata is applicable to questions of fact and law in criminal cases. However, we have been unable to find one case in which the doctrine was the basis for a Holding establishing conclusiveness of a decision on a legal issue by the Court in a previous trial for a different offense. We therefore respectfully submit that the question is one of first impression and should be treated as such by this Court.” Appel-lee’s Brief, pp. 24-25.