United States v. Jaben

• Decision Date: 04 September 1963
• Docket Number: No. 21547-3.,21547-3.
• Citation: 225 F. Supp. 47
• Parties: UNITED STATES of America, Plaintiff, v. Max JABEN, Defendant.
• Court: U.S. District Court — Western District of Missouri

225 F. Supp. 47

UNITED STATES of America, Plaintiff, v. Max JABEN, Defendant.

No. 21547-3.

United States District Court W. D. Missouri, W. D.

September 4, 1963.

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, of Kansas City, Mo., for defendant.

DUNCAN, District Judge.

On May 17, 1963, the Federal Grand Jury returned an indictment in three counts against the defendant, in this court. In the first count it is charged:

"That on or about the 16th day of April, 1957, in the Western District of Missouri, Max Jaben, late of Blue Springs, Missouri, did wilfully and knowingly attempt to evade and defeat a large part of the income tax due and owing by him to the United States of America for the calendar year 1956, by filing and causing to be filed with the District Director of Internal Revenue for the Internal Revenue District of Kansas City, Missouri, at Kansas City, Missouri, a false and fraudulent income tax return wherein he stated that his taxable income for said calendar year was the sum of $17,665.31 and that the amount of tax due and owing thereon was the sum of $6,017.32, whereas, as he then and there well knew, his taxable income for the said calendar year was the sum of 40,001.76, upon which said taxable income he owed to the United States of America an income tax of $14,562.99.

In violation of Section 7201, Internal Revenue Code; 26 U.S.C., Section 7201."

In the second count it is charged:

"That on or about the 15th day of April, 1958, in the Western District of Missouri, Max Jaben, late of Blue Springs, Missouri, did wilfully and knowingly make and subscribe and file and cause to be filed with the District Director of Internal Revenue for the Internal Revenue Collection District of Kansas City, Missouri, at Kansas City, Missouri, a Form 1040 United States Individual Income Tax Return for the calendar year 1957, which was verified by a written declaration that it was made under the penalties of perjury, which said Form 1040 United States Individual Income Tax Return for the calendar year 1957 he did not believe to be true and correct as to every material matter in that in the said Form 1040 United States Individual Income Tax Return for the calendar year 1957 he stated that his taxable income for the calendar year 1957 was the sum of $22,370.02 and that the amount of tax due and owing thereon was the sum of $7,364.60, whereas, as he then and there well knew and believed he had during calendar year 1957 received taxable income of $25,466.47 upon which said taxable income he owed to the United States of America an income tax of $7,430.58.

"In violation of Section 7206(1), Internal Revenue Code; 26 U.S.C., Section 7206(1)."

In the third count it is charged:

"That on or about the 13th day of July, 1959, in the Western District of Missouri, Max Jaben, late of Blue Springs, Missouri, who during the calendar year 1958 was married, did wilfully and knowingly attempt to evade and defeat a large part of the income tax due and owing by him and his wife to the United States of America for the calendar year 1958, by filing and causing to be filed with the District Director of Internal Revenue for the Internal Revenue District of Kansas City, Missouri, at Kansas City, Missouri, a false and fraudulent joint income tax return on behalf of himself and his said wife, wherein it was stated that their taxable income for said calendar year was the sum of $14,020.13 and that the amount of tax due and owing thereon was the sum of $3,333.64, whereas, as he then and there well knew, their joint taxable income for the said calendar year was the sum of $24,039.46, upon which said taxable income there was owing to the United States of America an income tax of $6,816.97.

"In violation of Section 7201, Internal Revenue Code; 26 U.S.C., Section 7201."

The defendant has filed Motion to Dismiss the indictment on the ground that:

"1. The indictment is vague, indefinite and duplicitous; it fails adequately to inform the defendant of the charges against him, as required by the Sixth Amendment to the Federal Constitution; the indictment fails to allege all of the elements of the offenses attempted to be charged; it would not bar a subsequent prosecution for the same offense; and it deprives the defendant of the right to be charged by a grand jury, in that, the language is so general it would allow the Government to secure a conviction of the defendant based upon facts not found by, and perhaps not even presented to, the grand jury which indicted him."

I am unable to find anything indefinite or duplicitous in the indictment, or that it fails to adequately advise the defendant of the nature of the charge against him. It clearly alleges the nature of the offense and would be a bar to any subsequent prosecution for the same offense.

The second ground of the motion is that Count I of the indictment is barred by the six year statute of limitations, and that the filing of the complaint on April 15, 1963, did not toll the running of the statute.

The third ground alleges that the Government is guilty of laches and unnecessary delay in the filing of the complaint and presenting the case to the grand jury, and that:

"* * * and as a result, defendant was denied his right to a `speedy trial' under the Sixth Amendment to the Federal Constitution; and further, the unnecessary delay on the part of the Government was in violation of Rule 48(b) of the Federal Rules of Criminal Procedure."

Clearly, the complaint was filed within the statutory period. It is not an uncommon practice on the part of the Government to delay the filing of a case to the last minute. A complaint or charge may be filed any time within the statutory period.

The filing of a complaint before the Commissioner within the period of limitation has the effect of tolling the statute, and a conviction obtained under an indictment returned thereafter is not barred by the statute of limitations. 26 U.S.C.A. § 6531; Zacher v. United...