Capone v. Aderhold
| Citation | 65 F.2d 130 |
| Decision Date | 31 May 1933 |
| Docket Number | No. 6880.,6880. |
| Parties | CAPONE v. ADERHOLD, Warden. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
William E. Leahy and Wm. J. Hughes, Jr., both of Washington, D. C., and Edwin H. Grace, of New Orleans, La., for appellant.
Clint W. Hager, U. S. Atty., and Hal Lindsay, Asst. U. S. Atty., both of Atlanta, Ga., Dwight H. Green, U. S. Atty., of Chicago, Ill., and G. A. Youngquist, Asst. Atty. Gen., and Sewall Key and John H. McEvers, Sp. Assts. to Atty. Gen., for appellee.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
This is an appeal from an order dismissing a petition for the writ of habeas corpus. The opinion of the district judge appears in 2 F. Supp. 280.
Appellant was convicted in the Northern District of Illinois upon an indictment, drawn under 26 USCA § 1266, and filed June 5, 1931, which charged him in three counts with attempting, on the 15th day of March in each of the years 1926, 1927, and 1928, respectively, to evade and defeat the federal income taxes imposed upon him by law. On appeal the judgment of conviction was affirmed. Capone v. United States (C. C. A.) 56 F.(2d) 927, certiorari was denied by the Supreme Court. 286 U. S. 553, 52 S. Ct. 503, 76 L. Ed. 1288. Appellant is now serving his sentence in the Atlanta Penitentiary. He alleges in his petition that during his trial, at the close of all the evidence, he moved for a directed verdict on the ground that he was not indicted within three years of the commission of the offenses with which he was charged. In support of his motion he relies on 18 USCA § 585 as an absolute bar to the prosecution, because, as he now says, the government offered no evidence to prove that he was absent from the district wherein the offenses are alleged to have been committed, and thus bring the prosecution within the exception provided by the statute extending the time for filing the indictment; but the government contended, and the court held, the petition alleges, that the prosecution was not barred until the expiration of six years, because the indictment charged offenses arising under the internal revenue laws to defraud the United States. The petition does not allege that the failure of the government to prove appellant's absence from the district was urged as a ground of the motion to direct a verdict; nor that appellant was not absent from the Northern District of Illinois a sufficient length of time to prevent the running of the statute of limitations. The question whether the statute of limitations was three years or six years apparently was not urged in the Circuit Court of Appeals; at least, that question is not discussed or referred to in the opinion of the court. Capone v. United States, supra. Subsequently to the opinion just referred to, the Supreme Court affirmed a decision of the District Court for Massachusetts which sustained a plea in bar to an indictment, similar to the indictment against appellant, which showed upon its face offenses which were committed more than three years prior to the return of the true bill. United States v. Scharton, 285 U. S. 518, 52 S. Ct. 416, 76 L. Ed. 917. So far as appears the plea in the Scharton Case did not allege that the defendant had been present in the district during the three years, or deny that he had been absent a sufficient length of time to prevent the running of the statute of limitations. The appellant therefore contends that the Scharton Case is authority for holding not only that the statutory period of limitations for the offense of attempting to evade or defeat the income tax laws is three years, but also that the burden is on the government to prove that his absence from the district where he was indicted prevented the running of the statute. The government, conceding as it must that the statutory period prescribed for the offense of attempting to evade or defeat income taxes is three years, replies that the Scharton Case was decided, not in habeas corpus proceedings, but upon a direct appeal.
The rule prevails generally in all courts that, as time is not ordinarily of the essence of the offense, the date on which it is alleged the offense was committed need not be proved as...
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