United States v. Zavin

• Decision Date: 07 February 1961
• Docket Number: Crim. A. No. 121-60.
• Parties: UNITED STATES of America v. Louis B. ZAVIN, Defendant.
• Court: U.S. District Court — District of New Jersey

190 F. Supp. 393

UNITED STATES of America v. Louis B. ZAVIN, Defendant.

Crim. A. No. 121-60.

United States District Court D. New Jersey.

February 7, 1961.

Chester A. Weidenburner, U. S. Atty., by Paul T. Smock, Asst. U. S. Atty., Newark, N. J., for the Government.

Martin D. Moroney, Newark, N. J., for defendant.

WORTENDYKE, District Judge.

Defendant moves to dismiss an indictment upon the ground that its prosecution is barred by a three-year statute of limitation. The motion is authorized by Rule 12(b) (1) of the Federal Rules of Criminal Procedure (18 U.S.C.). The indictment charges, in as many counts, thirty violations of 26 U.S.C. § 7206(2), Internal Revenue Code of 1954.

The specifications of each count are to the effect that on or about April 15, 1955 (in the odd-numbered counts) and on or about April 15, 1956 (in the even-numbered counts) defendant "did wilfully and knowingly aid and assist in and counsel, procure, and advise in the preparation and presentation * * * of a false and fraudulent income tax return," which claimed a depreciation deduction to which the taxpayer was not entitled. The offense charged is laid as a violation of 26 U.S.C. § 7206(2). That section provides as follows:

"Any person who —

* * * * * *

"(2) Aid or assistance. —

"Willfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document;

* * * * * *

shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned not more than 3 years, or both, together with the cost of prosecution."

The historical note appended to the foregoing section, as printed in the annotations, recites that "similar provisions to this section were contained in sections 2656(a), 3321(a), 3762, 3793(a), (b), 3809(a) of the 1939 Internal Revenue Code."

Section 6531 of the same Title provides as follows:

"§ 6531 Periods of limitation on criminal prosecution

"No person shall be prosecuted, tried, or punished for any of the various offenses arising under the internal revenue laws unless the indictment is found or the information instituted within 3 years next after the commission of the offense, except that the period of limitation shall be 6 years —

"(3) for the offense of willfully aiding or assisting in, or procuring, counselling, or advising, the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a false or fraudulent return, affidavit, claim, or document (whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document); * * *"

In support of his present motion, defendant argues that the three-year limitation set forth in the foregoing section (6531) bars the prosecution of the pending indictment. He asserts that the offenses charged in the indictment do not fall within the excepting clause contained in subdivision (3) of the section because, as defendant states in his main brief on this motion, "the offense the excepting clause describes is not the same as the offense described in the substantive statute, nor does it include the latter offense." Defendant contends that the omission of the adjectival phrase "as to any material matter" relating to the category "false or fraudulent return" in section 6531(3) renders inapplicable the six-year limitation thereby imposed for the offense proscribed in section 7206(2) which involves "a return...