U.S. v. Saussy, s. 85-5663

• Decision Date: 13 November 1986
• Docket Number: 85-5966,Nos. 85-5663,s. 85-5663
• Citation: 802 F.2d 849
• Parties: -5888, 86-2 USTC P 9718 UNITED STATES of America, Plaintiff-Appellee, v. Frederick Tupper SAUSSY, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 849

802 F.2d 849

58 A.F.T.R.2d 86-5888, 86-2 USTC P 9718

UNITED STATES of America, Plaintiff-Appellee, v. Frederick Tupper SAUSSY, III, Defendant-Appellant.

Nos. 85-5663, 85-5966.

United States Court of Appeals, Sixth Circuit.

Submitted Aug. 1, 1986.

Decided Oct. 1, 1986.

Rehearing and Rehearing En Banc Denied Nov. 13, 1986.

Denis H. Mark, Waller, Mark and Allen, Denver, Colo., William C. Waller, Jr., Kevin D. Allen, for defendant-appellant.

John W. Gill, U.S. Atty., Chattanooga, Tenn., John P. MacCoon, Connie V. Malone, for plaintiff-appellee.

Before KEITH and GUY, Circuit Judges, and BALLANTINE, District Judge. ^*

RALPH B. GUY, Jr., Circuit Judge.

Defendant, Frederick Tupper Saussy, III, appeals his conviction for willful failure to file a federal income tax return for the year 1977, in violation of 26 U.S.C. Sec. 7203. Defendant argues on appeal that the prosecution was barred by the statute of limitations, and also challenges four jury instructions given by the district court below. Finding no merit to any of the defendant's contentions, we affirm.

I.

On July 31, 1984, a three-count information was filed charging Saussy with willful failure to file federal income tax returns for the years 1977, 1978, and 1979, in violation of 26 U.S.C. Sec. 7203. After several continuances, trial was actually commenced on January 24, 1985, but was aborted due to the disruptive behavior of the defendant. The defendant was held in criminal contempt and the trial was rescheduled.

On March 21, 1985, a superseding indictment, charging the same crimes as were alleged in the July 31, 1984 information, was returned. Trial was held on the indictment on May 29-30, 1985, and the defendant was convicted upon count one and acquitted upon counts two and three of the indictment. Subsequent to trial, the defendant was sentenced to one year in prison and fined $10,000. Costs of prosecution were also assessed in the amount of $2,823.33. Notices of appeal were timely filed as to the conviction and as to the costs awarded.

II. Statute of Limitations

Simply put, defendant's argument on the statute of limitations issue is that although the information originally filed was within the six-year statutory period set forth in 26 U.S.C. Sec. 6531, it did not toll the statute because it was an "unverified" information. Defendant further argues that the statute was not tolled by the filing of the information; therefore, when the superseding indictment was filed after the six-year limitation period had run, it could not relate back to the previously filed information nor could it be construed to have been filed during a period of time when the statute was tolled. Defendant offers no relevant support for these arguments.

To begin with, there is no doubt that the filing of an information in this type of case would toll the running of the statute of limitations. Title 26, U.S.C. Sec. 6531 provides that in order to institute an appropriate prosecution under the Internal Revenue laws an indictment must be returned or an information filed within the statutory period. Rule 7(a), Fed.R.Crim.P., specifically provides that an offense of this nature which is punishable by imprisonment for a term of one year or less may be prosecuted by information. Defendant at least impliedly concedes this point, but contends further that this only occurs if the information is "verified" and that the information filed here was "unverified." By "unverified" defendant appears to mean an information that is not supported by some type of affidavit or by some prior determination of probable cause.

There is no requirement in either the statutes or the court rules for the verification of an information. The only requirement is that the information be signed by the attorney for the government. Fed.R.Crim.P. 7(c)(1). See also United States v. Pickard, 207 F.2d 472, 474 (9th Cir.1953).

Defendant's argument that when an information is filed it affords the defendant an opportunity for a probable cause hearing is incorrect. As stated in United States v. Funk, 412 F.2d 452, 455 (8th Cir.1969):

The use of an information as a formal criminal charge found recognition as early as the beginning days of the Nation. Act of April 30, 1790, C. 9 Sec. 31; 1 Stat. 119. Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505 (1927). Today, by use of the information for lesser crimes (and as to felonies where indictment is waived) the issues of probable cause and guilt become merged and tried together. The law has traditionally and constitutionally discriminated between safeguards guaranteed for felonies and those involved in lesser offenses. Duke v. United States, 301 U.S. 492, 57 S.Ct. 835, 81 L.Ed. 1243 (1937).

Defendant's argument on this point primarily results from his misapplication of three cases, United States v. Greenberg, 320 F.2d 467 (9th Cir.1963); Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965); and United States v. Millican, 600 F.2d 273, (5th Cir.1979), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). The issue involved in both Greenberg and Jaben was whether a complaint lacking in probable cause would be sufficient to toll a statute of limitations. Both courts correctly found that it would not. Both cases are distinguishable, however, in that a complaint under the Federal Rules of Criminal Procedure and the applicable statutes is not sufficient to stop the running of the statute of limitations. This is because a complaint does not constitute a formal charge upon which trial may proceed. On the other hand, an information is itself the formal charge and trial may be had upon it without more. Millican involves the showing that is required for the issuance of a warrant or summons after an indictment or information has been filed. It does not, as defendant suggests, hold that a probable cause hearing is required in connection with the institution of criminal charges by an information. In fact, Millican states directly to the contrary:

A probable cause determination is not a constitutional prerequisite to filing of the information itself, Gerstein v. Pugh, 420 U.S. at 125 n. 26, 95 S.Ct. 854 [869 n. 26], nor have the Federal Rules of Criminal Procedure, in effect since 1946, been construed to require probable cause in an information in order to state a prosecutable offense.

600 F.2d at 276 (citations omitted). Millican does state in what appears to be dicta that where a summons is issued after the filing of an indictment or information, there should be some sort of probable cause shown as a foundation for the issuing of the summons. Millican is specific, however, in holding that if that is not done and the defendant is ultimately convicted "he cannot upset that conviction on the argument that no probable cause was shown prior thereto." Id. at 277-78. ¹

This prosecution was appropriately instituted by information within the period of limitations. The information need not be verified and it does not entitle the defendant to a probable cause hearing. The only question remaining is whether the subsequent indictment filed after the running of the statutory limitations period resulted in a time-barred prosecution.

It is interesting to note, although not determinative of the issue, that the only reason the government proceeded to indictment in this case was to satisfy the defendant's demands for a probable cause hearing. The returning of an indictment by the grand jury, of course, conclusively determines probable cause. The indictment returned was in the same language and charged the identical offense as did the earlier information. Although there appears to be no case dealing specifically with this point, the cases are legion which hold that when an indictment supersedes a previous indictment it relates back to the time the earlier indictment was filed. See, e.g., United States v. Friedman, 649 F.2d 199 (3d Cir.1981); United States v. Grady, 544 F.2d 598 (2nd Cir.1976). See also United States v. Brewer, 681 F.2d 973 (5th Cir.1982) (where the government first proceeded by indictment and then subsequently dismissed the indictment and proceeded by information in a case in which they could have proceeded by information in the first instance).

We can discern no principled reason why, if an indictment relates back to an earlier filed indictment, a subsequently filed indictment should not relate back to an earlier filed information. ² The charges brought in the indictment were identical to those in the information. The concerns generally underlying statutes of limitations have to do with placing a defendant on notice of the charges brought against him before those charges are presumptively stale. Here, there is no doubt that the defendant was fully apprised of the charges against him before the statute had run, and that he was apprised of those charges in precisely the same language that was used in the subsequent indictment. Under these circumstances, the defendant suffered no prejudice, and defendant's subsequent conviction ratified the United States Attorney's and the grand jury's earlier determination of the existence of probable cause.

III.

Defendant also contends that four different instructions given to the jury were erroneous and prejudicial.

A. Instruction on "Willfulness"

Defendant contends that the court's instruction on willfulness was confusing and a misstatement of the law. First, it does not appear to the court that defendant has properly preserved this objection. Fed.R.Crim.P. 30 requires that counsel are to submit to the court written requests for instructions, as counsel did in this case. The court shall then inform counsel of its proposed action upon the requests prior to their arguments to the jury, as the court did in this case. Then, "no party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating...