999 F.Supp. 1378 (D.Hawai'i 1998), CR. 97-00517, United States v. Anglin

• Docket Nº: CR. 97-00517
• Citation: 999 F.Supp. 1378
• Party Name: United States v. Anglin
• Case Date: April 14, 1998
• Court: United States District Courts, 9th Circuit

Page 1378

999 F.Supp. 1378 (D.Hawai'i 1998)

UNITED STATES of America, Plaintiff,

v.

Floyd Calvin ANGLIN, Defendant.

CR. NO. 97-00517 DAE.

United States District Court, D. Hawai'i.

April 14, 1998

Loretta A. Faymonville, Office of the Federal Public Defenders, Honolulu, HI, for Floyd Calvin Anglin.

Leslie E. Osborne, Jr., Office of the U.S. Atty., Honolulu, HI, for U.S.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT

DAVID ALAN EZRA, District Judge.

The court heard Defendant's Motion on April 13, 1998. Assistant United States Attorney Leslie E. Osborne, Jr., appeared at the hearing on behalf of Plaintiff; Assistant Federal Public Defender Pamela J. Byrne appeared at the hearing on behalf of Defendant. After reviewing the motion and the supporting and opposing memoranda, the court DENIES Defendant's Motion to Dismiss Indictment.

DISCUSSION

On April 24, 1997, Defendant Floyd Calvin Anglin ("Defendant") was indicted on eight counts of failure to account for and pay withholding and FICA in violation of 26 U.S.C. § 7202, and two counts of failing to make an Employers Annual Federal Unemployment ("FUTA") tax return, Form 940, to the Internal

Page 1379

Revenue Service ("IRS") in violation of 26 U.S.C. § 7203. On March 3, 1998, Defendant filed a motion to dismiss the indictment on the grounds that the statute of limitations precludes prosecution.

Under 26 U.S.C. Section 6531, the statute of limitations for various offenses arising under the internal revenue laws is 3 years. However, the statute does have certain exceptions for which a 6-year statute of limitations applies. There is a split of authority as to whether the 3-year or 6-year statute of limitations applies to offenses under 26 U.S.C. Section 7202 for failure to account for and pay withholding taxes. The difference in opinion centers around whether the language of 26 U.S.C. Section 6531(4), which provides for a 6-year statute of limitations, applies to a violation of 26 U.S.C. Section 7202.

26 U.S.C. Section 6531(4) states that the 6-year statute of limitations shall apply to the "offense of willfully failing to pay any tax, or make any return ... at the time or times required by law or regulations." Some courts have interpreted this language to mean that Section 6531(4) does not cover violations of 26 U.S.C. Section 7202. See United States v. Brennick, 908 F.Supp. 1004, 1019...