U.S. v. Akmakjian, 80-1677

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation647 F.2d 12
Docket NumberNo. 80-1677,80-1677
Parties81-2 USTC P 9562 UNITED STATES of America, Plaintiff-Appellee, v. Lewis AKMAKJIAN, Defendant-Appellant.
Decision Date01 June 1981

Marti Ann Draper, Roquemore, Pringle & Moore, Inc., Los Angeles, Cal., for defendant-appellant.

William F. Fahey, Asst. U. S. Atty., Los Angeles, Cal., argued for plaintiff-appellee; Katherine M. Quadros, Asst. U. S. Atty., Los Angeles, Cal., on brief.

Appeal from the United States District Court for the Central District of California.

Before ELY, PREGERSON, and NELSON, Circuit Judges.

PER CURIAM:

Akmakjian appeals the denial of his petition under 28 U.S.C. § 2255 requesting that his guilty plea be vacated on the ground that the indictment was barred by the statute of limitations. In denying the petition, the district court held that the alleged defense of untimeliness was nonjurisdictional and had been expressly waived by Akmakjian when he entered his plea of guilty. We affirm.

Facts

On April 15, 1975, the Government filed a complaint against Lewis Akmakjian, charging him with filing a false federal income tax return for the calendar year 1968, in violation of 26 U.S.C. § 7206(1). On May 6, 1975, the complaint was dismissed on the Government's motion that the ends of public justice did not require prosecution.

On January 12, 1976, Akmakjian was indicted for six tax offenses occurring in 1969-72. Count 3 of the indictment charged the same offense that had been charged in the previously dismissed complaint. Akmakjian moved to dismiss counts 1 and 3 as barred by the statute of limitations. Before the hearing on the motion, however, Akmakjian entered into a plea agreement with the Government and pleaded guilty to count 3. The remaining counts were dismissed. Before accepting the guilty plea, the district court ascertained that Akmakjian knew that the statute of limitations presented a possible defense to count 3. Nevertheless, Akmakjian expressly waived the defense and the district court accepted his plea.

Four years later, Akmakjian filed a petition under 28 U.S.C. § 2255 to set aside the guilty plea to count 3 on the ground that the statute of limitations barred his indictment on that count. The district court denied the petition on the ground that Akmakjian had waived the statute of limitations defense at the time he entered his guilty plea. This appeal followed.

Discussion

The statute of limitations for income tax evasion requires the Government to obtain an indictment within six years of the commission of the offense with the proviso that:

(w)here a complaint is instituted before a commissioner of the United States within the period above limited, the time shall be extended until the date which is 9 months after the date of the making of the complaint before the commissioner of the United States.

26 U.S.C. § 6531. 1 Akmakjian was indicted six years, eight months, and twenty-seven days after the alleged violation. 2 Therefore the indictment was timely only if the tolling provision of section 6531 was activated.

In Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1964), the Supreme Court held that only a complaint establishing probable cause to believe that an offense had been committed activates the nine-month extension of the statute of limitations. In so holding, the Court addressed the policy concerns behind the nine-month extension of the statute of limitations. The tolling provision "was not meant to grant the Government greater time in which to make its case (a result which could have been accomplished by making the normal period of limitation six years and nine months), but rather was intended to deal with the situation in which the Government has its case made within the normal limitation period but cannot obtain an indictment because of the grand jury schedule." Id. at 219-20, 85 S.Ct. at 1368. The statute must be interpreted "to prevent the Government from filing a complaint at a time when it does not have its case made, and then using the nine-month period to...

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    ...v. Del Percio, 870 F.2d 1090, 1094 (6th Cir.1989)), or an express waiver of the defense in open court (see, e.g., United States v. Akmakjian, 647 F.2d 12, 14 (9th Cir.1981)). The rule in one circuit is that a defendant "who pleads guilty can challenge the prosecution as time-barred only ins......
  • State v. Littlejohn
    • United States
    • Supreme Court of Connecticut
    • 13 Mayo 1986
    ...cert. denied, 459 U.S. 1110, 103 S.Ct. 739, 74 L.Ed.2d 961 (1983); United States v. Levine, 658 F.2d 113 (3d Cir.1981); United States v. Akmakjian, 647 F.2d 12 (9th Cir.), cert. denied, 454 U.S. 964, 102 S.Ct. 505, 70 L.Ed.2d 380 (1981); United States v. Doyle, 348 F.2d 715 (2d Cir.), cert.......
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    • Court of Appeal of Florida (US)
    • 21 Diciembre 2016
    ...States v. Walsh , 700 F.2d 846, 855 (2d Cir. 1983) ; United States v. Williams , 684 F.2d 296, 299 (4th Cir. 1982) ; United States v. Akmakjian , 647 F.2d 12 (9th Cir. 1981) ; United States v. Wild , 551 F.2d 418, 424 (D.C. Cir. 1977) (holding that the statute of limitations is non-jurisdic......
  • US ex rel. Holleman v. Duckworth
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    ...collateral relief based on limitations defenses, but for various reasons these cases are of no help here. E.g., United States v. Akmakjian, 647 F.2d 12 (9th Cir.1981) (§ 2255 relief denied; waiver of limitations defense); Askins v. United States, 251 F.2d 909 (D.C.Cir.1958) (§ 2255 relief p......
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