Jaben v. United States

• Decision Date: 19 October 1964
• Docket Number: No. 17566.,17566.
• Citation: 333 F.2d 535
• Parties: Max JABEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

333 F.2d 535 (1964)

Max JABEN, Appellant, v. UNITED STATES of America, Appellee.

No. 17566.

United States Court of Appeals Eighth Circuit.

June 16, 1964.

Rehearing Denied July 9, 1964.

Certiorari Granted October 19, 1964.

Bernard J. Mellman, St. Louis, Mo., made argument for appellant and filed brief with Morris A. Shenker and Emanuel Shapiro, St. Louis, Mo., and James Patrick Quinn, Kansas City, Mo.

K. William O'Connor, Atty., Dept. of Justice, Washington, D. C., made argument for appellee and filed brief with Louis F. Oberdorfer, Asst. Atty. Gen., Joseph M. Howard, Atty., Dept. of Justice, Washington, D. C., and F. Russell Millin, U. S. Atty., Kansas City, Mo.

Before VOGEL, MATTHES and RIDGE, Circuit Judges.

Certiorari Granted October 19, 1964. See 85 S.Ct. 150.

MATTHES, Circuit Judge.

Max Jaben (hereinafter called appellant) tendered a plea of nolo contendere to Count I of an indictment charging him with attempted evasion of income tax for the year 1956. The plea was accepted by the court (Judge Duncan), and thereafter judgment of conviction was entered. The indictment was filed on May 17, 1963, more than six years after the offense alleged in Count I had been committed (April 16, 1957); however, the complaint upon which the summons was issued was filed on April 15, 1963, and within the limitation period.¹ This appeal presents the sole question whether the offense is barred by the statute of limitations. In order to resolve this issue, we must scrutinize the complaint and determine whether it was sufficient to enable the United States Commissioner to ascertain that probable cause existed within the rationale and teachings of the Supreme Court in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), and consequently whether it was sufficient to toll the statute of limitations.

A summary of the facts, all undisputed, will serve to place the issue in proper perspective.

On April 15, 1963, David A. Thompson, Special Agent of the Internal Revenue Service, signed, swore to and filed the complaint around which the controversy is centered. Because of its importance, the complaint is set out in full in the margin under footnote 2.² The United States Commissioner determined from the complaint that probable cause existed and thereupon issued a summons directing appellant to appear before the Commissioner on May 15, 1963. On May 17, an indictment in three counts was filed in the United States District Court alleging that appellant had attempted to evade payment of income taxes for the years 1956, 1957 and 1958 by filing false and fraudulent income tax returns for those years on April 16, 1957, April 15, 1958, and July 13, 1959, respectively.

On July 2, appellant filed a motion to dismiss the indictment, specifically alleging as to Count I that the offense therein charged was barred by the six-year statute of limitations, and that the statute was not tolled by the complaint filed on April 15. After a hearing, the court on September 4 denied the motion. United States v. Jaben, W.D.Mo., 225 F.Supp. 47 (1963). Thereafter, on November 1, appellant filed a supplemental motion to dismiss the indictment — again most strenuously attacking Count I, apparently because of the Ninth Circuit's opinion in United States v. Greenberg, 320 F.2d 467 (1963). This motion was denied on November 8. United States v. Jaben, W.D.Mo., 226 F.Supp. 757 (1963).

On December 2, the plea of nolo contendere to Count I of the indictment was tendered by appellant and accepted by the court. Counts II and III of the indictment were dismissed, and on January 7, 1964, judgment was entered on appellant's plea. Appellant was sentenced to imprisonment for a term of two years, but execution of all but four months of the sentence was suspended, and appellant was placed on probation for twenty months. This appeal is from the judgment of conviction on the plea.

We note initially that the question whether the offense is barred, a question appropriately raised by the motions to dismiss, is not foreclosed by the plea of nolo contendere. Appellant has the right to appeal from the judgment entered on the plea and to secure an adjudication of the question by this court. Melrose Distillers, Inc. v. United States, 4 Cir., 258 F.2d 726, 727 (1958), affirmed, 359 U.S. 271, 79 S.Ct. 763, 3 L.Ed.2d 800 (1959). Compare also, Lott v. United States, 367 U.S. 421, 81 S.Ct. 1563, 6 L.Ed.2d 940 (1961).

Appellant concedes that the complaint was filed within six years after the alleged offense was committed and recognizes that if the complaint is legally sufficient, the indictment, even though filed after the limitation period, is timely and supports the judgment of conviction. Conversely, the Government concedes that if the complaint is legally defective, the statute was not tolled by the filing thereof and the prosecution is barred. No other conclusion is permissible in view of 26 U.S.C. § 6531, and prior adjudications by this court. Burger v. United States, supra, 262 F.2d 946; Zacher v. United States, supra, 227 F.2d 219.

Buttressed by the holding in United States v. Greenberg, supra, 320 F.2d 467, appellant's position, in summary, is that the challenged complaint is invalid on its face, in that it is vague, indefinite, is pro forma, and merely states the conclusion of the affiant; that it is based upon hearsay and no basis is alleged for crediting the hearsay; and that since no facts are alleged showing probable cause to believe that appellant committed the offense charged, the issuance of the summons violated the probable cause requirement of the Fourth Amendment to the United States Constitution and Rules 3 and 4, Fed.R.Crim.P.³

Beyond cavil, Greenberg, supra, 320 F.2d 467, which struck down an almost identical complaint, supports appellant's position. However, that holding is not binding upon us, and with all due deference, we are not inclined — for what we regard to be impelling and cogent reasons — to follow that case.

Unquestionably, and as recognized by appellant and the Government, the controlling authority is Giordenello v. United States, supra, 357 U.S. 480, 78 S.Ct. 1245. The parties differ, however, in their interpretation of the test which Giordenello established for determining whether the complaint satisfies the probable cause requirement.

It is well to have in mind that in Giordenello the pertinent part of the complaint read:

"`The undersigned complainant Finley being duly sworn states: That on or about January 26, 1956, at Houston, Texas in the Southern District of Texas, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code.\'" 357 U.S. at 481, 78 S.Ct. at 1247.

The crux of the holding in Giordenello on the issue before us is articulated as follows at pp. 485-486 of the opinion, at p. 1249 of 78 S.Ct.:

"Criminal Rules 3 and 4 provide that an arrest warrant shall be issued only upon a written and sworn complaint (1) setting forth `the essential facts constituting the offense charged,\' and (2) showing `that there is probable cause to believe that such an offense has been committed and that the defendant has committed it * * *.\' The provisions of these Rules must be read in light of the constitutional requirements they implement. The language of the Fourth Amendment, that `* * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing * * * the persons or things to be seized * * *,\' of course applies to arrest as well as search warrants. See Ex parte Burford, 3 Cranch 448, 2 L.Ed. 495; McGrain v. Daugherty, 273 U.S. 135, 154-157 47 S.Ct. 319, 323, 71 L.Ed. 580. The protection afforded by these Rules, when they are viewed against their constitutional background, is that the inferences from the facts which lead to the complaint `* * * be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.\' Johnson v. United States, 333 U.S. 10, 14 68 S.Ct. 367, 369, 92 L.Ed. 436. The purpose of the complaint, then, is to enable the appropriate magistrate, here a Commissioner, to determine whether the `probable cause\' required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant\'s mere conclusion that the person whose arrest is sought has committed a crime.

"When the complaint in this case is judged with these considerations in mind, it is clear that it does not pass muster because it does not provide any basis for the Commissioner\'s determination under Rule 4 that probable cause existed. The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant\'s belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made."

Unlike Giordenello, here the complainant (Agent Thompson) stated under oath that he had personally investigated the tax...