United States v. Jaben
| Decision Date | 08 November 1963 |
| Docket Number | No. 21547-3.,21547-3. |
| Citation | 226 F. Supp. 757 |
| Parties | UNITED STATES of America, Plaintiff, v. Max JABEN, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
F. Russell Millin, U. S. Atty., Kansas City, Mo., James Featherstone and K. William O'Connor, Washington, D. C., for plaintiff.
Morris A. Shenker, St. Louis, Mo., James P. Quinn, of Quinn & Peebles and Kenneth Cohn, Kansas City, Mo., for defendant.
Defendant was indicted for failure to pay his income taxes for the years 1956, 1957 and 1958, and he has filed "Supplemental Motion to Dismiss the Indictment", alleging that, "The indictment and each count is vague, indefinite and duplicitous; it fails adequately to inform the defendant of the charges against him," and follows the usual attack upon the indictment.
It also alleges that it is barred by the six year statute of limitations, and that:
"The Commissioner acted illegally, unlawfully and in violation of his duty in issuing the complaint and summons based upon the affidavit of Special Agent Thompson; he failed to accord defendant a hearing as required under Rule 5(c), thereby failing to give defendant the opportunity to `cross-examine witnesses against him' and present evidence for the purpose of determining whether there was in fact probable cause to believe he committed an offense; * * *."
The same motion was before the court and overruled in a Memorandum and Order dated September 4, 1963, 225 F. Supp. 47, in which the provisions of the indictment were set out. In that order the court ruled upon all of the questions that have now been raised in defendant's Supplemental Motion.
Apparently the only ground for the filing of this motion is that a similar question involving the sufficiency of the Complaint was before the court in United States v. Greenberg, on July 5, 1963, and reported in 320 F.2d 467 (9 Cir.) where a complaint was filed prior to the return of an indictment, obviously for the purpose of tolling the statute of limitations.
The complainant, a special agent of the Internal Revenue Service, made an affidavit which is in almost the exact language as that in the affidavit filed in the case now under consideration. That court held that the Commissioner could not determine for himself upon the complainant's affidavit, that probable cause existed for issuing the summons or warrant, and that the complaint so filed, did not toll the statute of limitations.
The question with which we are concerned here was before Judge Oliver of this court in United States v. Black, D.C., 216 F.Supp. 645, where the affidavit was identical with the one under consideration here. Judge Oliver in a well considered opinion, (written before United States v. Greenberg had been decided), overruled the defendant's Motion to...
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Jaben v. United States
...Ninth Circuit's opinion in United States v. Greenberg, 320 F.2d 467 (1963). This motion was denied on November 8. United States v. Jaben, W.D.Mo., 226 F.Supp. 757 (1963). On December 2, the plea of nolo contendere to Count I of the indictment was tendered by appellant and accepted by the co......
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Ross v. Sirica
...Jaben did complain of the denial of an opportunity to cross-examine witnesses at a preliminary hearing. United States v. Jaben, 226 F.Supp. 757, 758 (W.D.Mo. 1963). That point was abandoned on appeal, no doubt due to Jaben's one month acquiescence during which no hearing was held. We have e......
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