The opinion of the court was delivered by: KAUFMAN
Defendants were indicted in June 1948, charged with attempting to defeat and evade the payment of income tax by the filing of a false and fraudulent return on June 15, 1931 for the year 1930. 26 U.S.C.A. § 145(b). The return was that of defendant Eleanor Louise Patenotre. The other defendant is her son.
Defendant Eleanor Louise Patenotre lived here until 1930, at which time she went to France and there she remained continually until the fall of 1946. The other defendant has always been a resident of France and, except for an occasional visit, was never in this country until 1946.
Both defendants move to withdraw their pleas of not guilty and to dismiss the indictment on the ground that, since the alleged crime was committed in 1931 and the indictment was not found until 1948, the statute of limitations had run before the finding of the indictment.
It is unnecessary to determine whether the applicable statute of limitations is Section 585
of Title 18 U.S.C., or 26 U.S.C.A. § 3748, or whether the basic period of limitation is three years or six years, because the result here is the same in any case. The statutory language which must be construed here is substantially the same in both the sections to which reference has been made and more than six years have elapsed between the alleged commission of the crime and the finding of the indictment.
Section 3748 of Title 26 U.S.C.A. provides that 'the time during which the person committing any of the offenses above mentioned is absent from the district wherein the same is committed shall not be taken as any part of the time limited by law for the commencement of such proceedings.' The only difference between this and the relevant language in Section 584
of Title 18 is that in the latter section the words 'the offense' are substituted for the words 'any of the offenses above mentioned'.
What must be decided here is whether or not defendants have been 'absent' from the district, within the meaning of that word as used in the language quoted above.
The cases on the subject are few: United States v. Mathis, D.C., 28 F.Supp. 582 (Avis, J.); United States v. Eliopoulos, D.C., 45 F.Supp. 777 (Forman, J.); U.S. v. Frankel
(unpublished opinion, File #C 104-432, S.D.N.Y., Knox, J.).
In the Mathis case, the defendant had been Secretary of State of the State of New Jersey and had maintained a home in the district throughout most of the statutory period, his absences having been, 28 F.Supp.at page 585: 'for pleasure or business, with or without his wife, in the ordinary manner applicable to any other resident of the State.' Judge Avis ordered the indictment dismissed, saying, 28 F.Supp.at page 585:
'I am convinced that to adjudicate such absences as being within the statute, and thereby extending the time of the running of the statute would be an abuse of ordinary criminal processes.'
The Court there was of the opinion that in order to toll the statute
'the absences must be such as interfere in some manner with the orderly method of finding an indictment, or which constitute an interference with the execution of process. Nothing of that character appears in the instant case.'
In the present case, the defendant Raymond Patenotre has never been a resident of, or domiciled in, the district, or even in the United States; he has, except for occasional visits to this country, lived continually in France. The defendant Eleanor Louise Patenotre was a resident of this district until she left the United States in March 1930, to go to France, where she remained until the fall of 1946.
Hence the 'absences' of the defendants here were of a character entirely different from that which the Court found determinative in the Mathis case.
In the Frankel case, the absences were, like those in the Mathis case, sporadic and for 'recreation and refreshment'. Judge Knox, noting that Congress had used the words 'absent from the district' and had 'specifically rejected the classic phrases such as 'beyond the reach of legal process' or 'places himself beyond the jurisdiction of the Court of the district' or 'flees from the jurisdiction of the Court", concluded that the statute was ...