United States v. Rully, Cr. 9158.
| Decision Date | 02 November 1955 |
| Docket Number | Cr. 9158. |
| Citation | 136 F. Supp. 881 |
| Parties | UNITED STATES of America v. Frank RULLY, aka Frank Rulli. |
| Court | U.S. District Court — District of Connecticut |
Simon S. Cohen, U. S. Atty., Hartford, Conn., for plaintiff.
John M. Chapnick, and Boris I. Bittker, New Haven, Conn., for defendant.
In prosecution for income tax evasion, defendant has filed three motions, for discovery and inspection, for dismissal of the first count as barred by limitations, and for bill of particulars.
The government has agreed to make available the material sought by motion for discovery and inspection. The motion for discovery and inspection may go off.
The motion to dismiss the first count of the Information is based on a claim that there is a fatal variance between the complaint filed with the United States Commissioner and the Information subsequently filed, and a claim that the six year statute of limitations has run, no valid complaint having been filed with a Commissioner to toll the statute, and the Grand Jury then existing having in any case been discharged prior to the waiver of indictment and filing of the information. The complaint appears sufficient. U. S. v. Dolan, D.C. D.Conn., 113 F.Supp. 757, 760-762. Nor does the change in the information from "their joint net income" as phrased in the complaint to "his net income" appear to be a variance prejudicial to the defendant. If the component of the joint income under attack was that of defendant rather than his wife it still could have resulted in a misstatement of their joint net income. Limiting the charge to "his" in the information may narrow the possible proof, but could have been shown under the language of the complaint, and cannot harm defendant. The second claim depends on the meaning of "next session" in the statute, 26 U.S.C.A. § 3748. While the period for which the statute is tolled is no longer until the discharge of the next session of the Grand Jury, but for nine months, Internal Revenue Code 1954, Ch. 66, § 6531, Section 7851(d) extended the old provisions for acts committed prior to the effective date of the 1954 Act. The old provisions therefore apply here. It is not claimed that the statute was tolled by absence of defendant from the jurisdiction. The government claims that the waiver of indictment and consent to be prosecuted by information was a waiver of the bar of the statute. Since a waiver is the intentional relinquishment of a known right, for waiver to exist the defendant must have intended to abandon the protection of the bar, knowing of its existence, which is unlikely. No waiver is here established. Even under the old provisions, which apply here, however, the tolling of the statute did not end with the discharge of the then sitting Grand Jury two days after the filing of the complaint, but with the discharge of the "next session" of the Grand Jury, which would normally be defined as the Grand Jury first convened subsequent to the date of the filing of the complaint. That Grand Jury has not yet been discharged. The Grand Jury then sitting had a "session" in the sense of a daily sitting two days after the filing of the complaint. The array had however been successfully challenged in another case, and the United States Attorney understandably chose not to bring this case before it. The next session for the transaction of business in the sense of this statute would be the first Grand Jury convened thereafter. Prior to the coming in of the next Grand Jury on May 2, defendant through his counsel agreed to waive indictment and plead to an information, which was done on May 13. That did not operate as a waiver of any defect in the complaint, but does excuse lack of further action on the complaint after the agreement to waive indictment and plead to an information.
The motion to dismiss the first count is denied.
With respect to the motion for bill of particulars, reasonable identification of the matter to be relied on, for protection of defendant and avoidance of unnecessary trial preparation appear to require the furnishing of the information requested in...
To continue reading
Request your trial
-
United States v. Freeman, IP 58-CR-28.
...v. Scully, D.C.N.Y.1954, 119 F.Supp. 225; Id., 2 Cir., 1955, 225 F.2d 113; White v. U. S., 5 Cir., 1954, 216 F.2d 1; United States v. Rully, D.C.Conn.1955, 136 F. Supp. 881; United States v. Montgomery, D.C.Pa.1958, 158 F.Supp. The defendants' Motion to Dismiss is sustained and Count One of......
-
United States v. Jurzykowski, Cr. No. 31835.
...The question is discussed in United States v. Dolan, D.C., 113 F.Supp. 757 and in the decision of Judge Smith in United States v. Rully, D.C.Conn., 136 F.Supp. 881, 883. Although the procedure to be followed upon the filing of a complaint with a Commissioner is not specifically outlined in ......
-
United States v. Schack
...or summons" had been issued by the Commissioner, and hence that case is not apposite to the instant situation. And in United States v. Rully, D.C., 136 F.Supp. 881, it also appears that all that was done was to file a complaint; that no warrant or summons was requested or issued and no noti......
-
United States v. Gross, Crim. No. 13042.
...by, inter alia, enforcing such essentials of fairness as the requirements of probable cause and notice (See: United States v. Rully, D.C.D.Conn., 136 F.Supp. 881, 883; and United States v. Dolan, D.C. D.Conn., 113 F.Supp. 757, Neither the law, nor the equities, asserted by the Government ca......