United States v. Myerson

• Citation: 368 F.2d 393
• Decision Date: 16 November 1966
• Docket Number: Docket 30427.,No. 84,84
• Parties: UNITED STATES of America, Appellee, v. Michael MYERSON, a/k/a Meyer Meyersohn, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

368 F.2d 393 (1966)

UNITED STATES of America, Appellee, v. Michael MYERSON, a/k/a Meyer Meyersohn, Appellant.

No. 84, Docket 30427.

United States Court of Appeals Second Circuit.

Argued October 25, 1966.

Decided November 16, 1966.

Philip J. Ryan, New York City (Ryan, Temkin & Ginsberg, Morton L. Ginsberg, New York City, on the brief), for appellant.

Charles P. Sifton, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, New York City, Daniel R. Murdock and Michael W. Mitchell, Asst. U. S. Attys., on the brief), for appellee.

Before LUMBARD, Chief Judge, and MOORE and KAUFMAN, Circuit Judges.

PER CURIAM:

Appellant was convicted on a one-count indictment of fraudulent evading and defeating a large part of the federal income tax due and owing by him and his wife for the calendar year 1956, in violation of 26 U.S.C. § 7201. Upon the trial, the government introduced substantial evidence as to appellant's guilt and appellant raises no question here as to its sufficiency. Instead, appellant urges three assignments of error: (1) the six-year statute of limitations had run prior to the return of the indictment; (2) the jury's deliberations were infected by the physical and emotional strain imposed on its members by an electric power failure causing a city-wide blackout of substantial duration; and (3) the trial court erred in failing to compel the prosecution to turn over to the defense certain "witness sheets."

Appellant filed his income tax return on February 5, 1957. The six-year period of limitations for the wilful evasion of tax, established by 26 U.S.C. § 6531(2), commenced to run from the last date upon which the 1956 return was due, to wit, April 15, 1957.¹ The indictment was returned on August 8, 1963, some 115 days after the expiration of six years. Section 6531 of 26 U.S.C., however, provides for a tolling of the limitations statute whenever a person committing an offense under the internal revenue laws "is outside the United States or is a fugitive from justice". It was established at trial that appellant had been "outside the United States" in excess of 115 days during the relevant period. Appellant argues that the section was not intended to apply to periods spent "outside the United States" unless the circumstances indicated flight, a substantial impediment to the investigation and enforcement of the internal revenue laws, an evasion of legal process or, at least, a change of residence. We disagree. The statute is unambiguous on its face and clearly covers appellant's absences. There is nothing unreasonable or arbitrary about the tolling of the statute of limitations during an offender's absence from the country. Appellant's claim that the statute, if applied to ordinary business or pleasure trips, is unconstitutional is without merit.

We also reject appellant's contention that the jury was unable to deliberate fairly or intelligently due to the physical and mental discomfort caused by the fact that shortly after the jury retired the lights...