Tinkoff v. United States, 10745.

• Decision Date: 09 March 1954
• Docket Number: No. 10745.,10745.
• Parties: TINKOFF v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

211 F.2d 890 (1954)

TINKOFF v. UNITED STATES.

No. 10745.

United States Court of Appeals, Seventh Circuit.

March 9, 1954.

Paysoff Tinkoff, Chicago, Ill., in pro. per.

Irwin N. Cohen, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., Otto Kerner, Jr., U. S. Atty., for appellee.

Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.

MAJOR, Chief Judge.

Paysoff Tinkoff, the plaintiff, a lawyer and public accountant, in 1934 was convicted in the United States District Court for the Northern District of Illinois of the crime of income tax evasion. On appeal, his conviction was affirmed by this court. Tinkoff v. United States, 7 Cir., 86 F.2d 868. As a result of such conviction Tinkoff served a term in prison, was disbarred by the Supreme Court of Illinois and his license as a public accountant was terminated. During the intervening years he has instituted innumerable court proceedings in one form and another, on the premise that he was innocent of the crime with which he was charged and that his conviction was wrongfully obtained.

The present action was commenced against the United States on December 31, 1951, by a complaint under the Federal Tort Claims Act (Title 28 U.S. C.A. §§ 1346(b) and 2674) seeking recovery of damages in the sum of one million dollars for alleged injury to plaintiff's person. On defendant's motion, the court dismissed the complaint for failure to state a cause of action. From such order of dismissal plaintiff appeals.

The complaint covers forty typewritten pages and contains eighty-eight paragraphs. We think there is no occasion to relate the allegations in detail. It is sufficient for our purpose to state that plaintiff's conviction in 1934, according to the allegations, was obtained as a result of a conspiracy entered into between many government officials, including prosecuting officials, both in the office of the District Attorney for the Northern District of Illinois and in the Department of Justice, Federal agents, investigators and a person by the name of Newman, who was jointly indicted with plaintiff. The substance of the allegations is that these officials and agents of the government and others, with knowledge of the innocence of Tinkoff, conspired and agreed among themselves to obtain his conviction with perjured testimony, knowing it to be such, and that his conviction was a result thereof. Many details are recited in the complaint, designed to demonstrate not only that the government officials and others had knowledge of his innocence but that they had in their possession documentary proof which would have exonerated him. The complaint alleged that the conspiracy thus stated was continuing and that it still persists. Such is the situation, so it was alleged, because the conspirators have through the years refused to make available to Tinkoff the documents and other evidence possessed by the government which would have enabled him to establish his innocence and to demonstrate that his conviction resulted from the alleged conspiracy. It was alleged that "written information" of the claimed conspiracy first came into the possession of Tinkoff in November, 1951.

There are numerous reasons, in our judgment, which support the order dismissing the complaint. Section 2674, Title 28 U.S.C.A., upon which the suit is predicated, provides: "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances * * *." Section 2401(b) of the same Title provides: "A tort claim against the United States shall be forever barred unless action is begun within two years after such claim accrues * * *."

Undoubtedly plaintiff attempts to present a tort claim and, under the plain language of the statute, it is barred unless commenced within two years after its accrual. We see no escape from the conclusion that his alleged cause of action accrued at the time of his alleged wrongful conviction. Plaintiff attempts to escape this limitation bar on the theory alleged in his complaint that the conspiracy continued and that the...