United States v. Greenberg, 18285.
Decision Date | 21 August 1963 |
Docket Number | No. 18285.,18285. |
Parties | UNITED STATES of America, Appellant, v. Hyman GREENBERG, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section; and Richard A. Murphy, Asst. U. S. Atty., Assistant Chief, Criminal Section, Los Angeles, Cal., for appellant.
Bertram H. Ross, Los Angeles, Cal., for appellee.
Before JERTBERG and MERRILL, Circuit Judges, and WEIGEL, District Judge.
The basic question on this appeal by the government is whether the District Court properly dismissed an indictment returned against appellee on the ground that prosecution of the offense charged in the indictment is barred by the Statute of Limitations.
The one count indictment was filed in the District Court on May 23, 1962 and charges that the appellee, on or about April 14, 1956:
Section 7201 of Title 26 U.S.C., provides as follows:
"Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution."
The six year period of limitation established by Section 6531, Title 26 U.S.C. expired on April 14, 1962. Since the indictment was not filed until May 23, 1962, it is conceded that the prosecution of the offense set forth in the indictment is barred unless the six year period of limitation was extended by the institution of a complaint against the appellee before a Commissioner of the United States on April 13, 1962. Section 6531, Title 26 U.S.C. provides, in pertinent part, as follows:
The complaint filed with the United States Commissioner for the Southern District of California on April 13, 1962, is as follows:
The summons issued by the United States Commissioner upon the complaint was personally served on the appellee on April 13, 1962.
The summons directed the appellee to appear before the Commissioner on May 4, 1962 "to answer to complaint charging you with evasion of income tax in violation of U.S.C. Title 26, Section 7201."
Included in the record before us is the Certificate of the United States Commissioner in which, among other things, he certifies "that the only evidence or information presented to me in connection with the filing of said complaint and the issuance of said summons was the affidavit of Walter E. Schlick as set forth in the aforesaid complaint."
Rule 3 of the Federal Rules of Criminal Procedure provides as follows:
Rule 4 of the Federal Rules of Criminal Procedure in pertinent part provides as follows:
On motion of the appellee, the District Court held that the complaint filed on April 13, 1962, based upon the April 14, 1956 offense set forth in the indictment, did not state sufficient facts to establish probable cause and accordingly the complaint was insufficient to toll the running of the six year period of limitation.
The government advances a two-facet argument in support of its position that the judgment of dismissal of the indictment entered by the District Court must be reversed. One facet is that in instances where a summons is issued on a complaint under Rule 4, the complaint on which it is based need not state probable cause but need only to conform to the requirements of Rule 3, and that the probable cause requirement of Rule 4 need be observed only where a warrant of arrest is issued by the Commissioner upon the filing of the complaint. The second facet is that the complaint in question was sufficient to meet the probable cause requirement of Rule 4.
It appears to us to be well settled that where a warrant of arrest is issued by the Commissioner on a complaint under Rule 4, the complaint is insufficient if it simply states the essential facts constituting the offense charged as stated in Rule 3. In Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958) a warrant of arrest was issued under Rule 4, based on a written complaint which read in...
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