MILLER v. U. S.

• Decision Date: 01 January 1974
• Citation: 419 U.S. 970
• Court: U.S. Supreme Court

42 L.Ed.2d 186 419 U.S. 970

Irving E. MILLER and Frederick T. Hyman v. UNITED STATES.

No. 73-1724.

Supreme Court of the United States

October 29, 1974

On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice BLACKMUN, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.

On In eight of the 12 counts petitioners were charged with income tax fraud, in violation of 7206(1) of the Internal Revenue Code of 1954, 26 U.S.C. 7206(1).1 The indictment alleged that the

Page 419 U.S. 970, 971

acts that were the subject of four of the fraud counts (counts II-V, inclusive) were committed on July 18 and 21, 1966, respectively.

Section 6531 of the Code, 26 U.S.C. 6531,2 provides a 6-year period of limitations for offenses under 7206(1). The indictment, obviously, was returned after the expiration of the 6-year period and, without more, would be subject to dismissal as out-of-time. See Benes v. United States, 276 F.2d 99, 107-109 (CA6 1960).

Section 6531, however, has as its penultimate sentence the following:

'Where 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.'

With respect to the alleged offenses of July 18 and 21, 1966, a complaint was filed by the Government with a commissioner of the United States on July 17, 1972, just within the 6-year period. The record contains an

Page 419 U.S. 970, 972

acknowledgment, and discloses, that the Government's case had been prepared a week or 10 days before the expiration of the 6-year period; that there was time for the prosecution to have presented the case to a grand jury within that period; that a grand jury had been empaneled in the district; that, in fact, a grand jury of the district had sat in July 1972, including, specifically, the 13th and 20th days of that month; and that the situation was not one where a grand jury of the district was not in session during the closing days of the limitation period.

A defense motion to dismiss the four counts was granted by the District Court. The Court of Appeals reversed. 491 F.2d 638, 644-646 (CA5 1974).

In Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965), 6531 was construed to apply to a situation where the Government had developed its case within the time period prescribed by the statute of limitations, but was unable to obtain an indictment because a grand jury was not in session. Mr. Justice Harlan, in speaking for the Court observed:

'More basically, the evident statutory purpose of the nine-month extension provision is to afford the Government an opportunity to indict criminal tax offenders in the event that a grand jury is not in session at the end of the normal limitation period. This is confirmed by the immediate precursor of the present section which provided for an extension 'until the discharge of the grand jury at its next session within the district.' I.R.C. 1939, 3748(a). Clearly the statute was not meant to grant the Government greater time in which to make its case (a result which could have been accomplished simply by making the normal period of limitation six years and nine months), but rather was intended to deal

Page 419 U.S. 970, 973

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.' (Footnote omitted.) 381 U.S., at 219-220, 85 S.Ct. 1365.

Mr. Justice Goldberg, in a separate opinion, concurring in part and dissenting in part, and joined by Chief Justice Warren and Mr. Justice Douglas, echoed this conclusion:

'I agree with the Court that the purpose of the tolling provision in the statute of limitations before us, as evidenced by its language and its legislative history, is to...