On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice BLACKMUN, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
On In eight of the 12 counts petitioners were charged with income tax fraud, in violation of 7206(1) of the Internal Revenue Code of 1954, 26 U.S.C. 7206(1).1 The indictment alleged that the [419 U.S. 970, 971] acts that were the subject of four of the fraud counts (counts II-V, inclusive) were committed on July 18 and 21, 1966, respectively.
Section 6531 of the Code, 26 U.S.C. 6531,2 provides a 6-year period of limitations for offenses under 7206(1). The indictment, obviously, was returned after the expiration of the 6-year period and, without more, would be subject to dismissal as out-of-time. See Benes v. United States, 276 F.2d 99, 107-109 (CA6 1960).
Section 6531, however, has as its penultimate sentence the following:
With respect to the alleged offenses of July 18 and 21, 1966, a complaint was filed by the Government with a commissioner of the United States on July 17, 1972, just within the 6-year period. The record contains an [419 U.S. 970, 972] acknowledgment, and discloses, that the Government's case had been prepared a week or 10 days before the expiration of the 6-year period; that there was time for the prosecution to have presented the case to a grand jury within that period; that a grand jury had been empaneled in the district; that, in fact, a grand jury of the district had sat in July 1972, including, specifically, the 13th and 20th days of that month; and that the situation was not one where a grand jury of the district was not in session during the closing days of the limitation period.
A defense motion to dismiss the four counts was granted by the District Court. The Court of Appeals reversed. 491 F.2d 638, 644-646 (CA5 1974).
In Jaben v. United States, 381 U.S. 214 , 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965), 6531 was construed to apply to a situation where the Government had developed its case within the time period prescribed by the statute of limitations, but was unable to obtain an indictment because a grand jury was not in session. Mr. Justice Harlan, in speaking for the Court observed:
Mr. Justice Goldberg, in a separate opinion, concurring in part and dissenting in part, and joined by Chief Justice Warren and Mr. Justice Douglas, echoed this conclusion:
This analysis of the purpose of the significant sentence of 6531, although not determinative of the issues in Jaben, remains as this Court's primary interpretation of the statute.
The Government's position, however, as expressed in its memorandum in opposition to the petition for certiorari,3 is essentially that the 6-year limitation period for [419 U.S. 970, 974] an offense under 7206(1) is automatically extended and converted into a 6-year and 9-month period, at the Government's option, by its mere filing of an appropriate complaint with a commissioner of the United States before the expiration of the 6-year period.
The Government, possibly, is right, but its position, under the circumstances of this case, appears to me to be not entirely consistent with what was said in the respective opinions in Jaben by Justices Harlan and Goldberg. I therefore would grant the petition for certiorari and test the Government's position only upon full briefing and argument.
[ Footnote 1 ] 7206. Fraud and False statements.
[ Footnote 2 ] ' 6531. Periods of limitation on criminal prosecutions.
[ Footnote 3 ] 'The statute simply permits the filing of a complaint prior to the end of the limitations period as a means of extending the time for the issuance of an indictment . . .. The purpose of the complaint procedure is to allow the government additional time to present the matter to the grand jury once it case is made.' Memorandum for the United States in Opposition 3.