The opinion of the court was delivered by: BRENNAN
The defendants move to dismiss the separate counts of an indictment as they apply to each of the defendants separately.
On December 1, 1955 a four-count indictment was filed in this court which in effect charged the defendant, Jurzykowski, in Count 1 with a violation of Section 145(b) of the Internal Revenue Code of 1939 (26 U.S.C.A. § 145(b)) in that he attempted to evade a large part of the income tax due and owing by him and his wife to the United States of America for the calendar year 1948 by filing a false and fraudulent joint income tax return in behalf of himself and his wife with the Collector of Internal Revenue at Albany N.Y. Count 2 charges a similar violation of law by defendant, Schenker. Count 3 charges defendant, Cohen, with aiding, assisting, procuring and advising the preparation and presentation of the above mentioned income tax return of Jurzykowski in violation of Section 3793(b)(1) of the Internal Revenue Code of 1939 (26 U.S.C.A. 3793(b)(1)). Count 4 charges defendant, Cohen, with a similar violation of law in the matter of the above mentioned tax return of defendant, Schenker.
A previous motion to dismiss the indictment was denied with leave to renew.
The motion is based upon the assertion that the indictment under attack was not filed within the six year limitation after the commission of the offense and the prosecution and trial are proscribed by reason of the provisions of the Internal Revenue Code (26 U.S.C.A. § 3748). Each count of the indictment charges the commission of the offenses alleged therein to have occurred on or about the 16th day of May 1949. The defendants may not be prosecuted upon said indictment according to the dates appearing on the face thereof unless the period of limitations has been tolled under the provisions of law.
It appears without dispute that on May 16, 1955 and within the six year limitation period four complaints, signed and verified by Daniel J. Maher, Special Agent, Intelligence Division, Internal Revenue Service, were presented to United States Commissioner Conan at Syracuse N.Y. Said complaints were in a form provided for use by agents of the Internal Revenue Service in invoking the provisions of Section 3748 which provides as follows:
'Where a complaint is instituted before a commissioner of the United States within the period above limited, the time shall be extended until the discharge of the grand jury at its next session within the district'.
Each of the complaints by its language was based upon the personal knowledge of the agent executing same. One complaint in effect charged defendant, Jurzykowski, with attempting to evade his income tax due for the year 1948 by filing a false and fraudulent return of his net income. A similar complaint charged defendant, Schenker, with a like violation. The third complaint charged that on or about May 16, 1949 in the Northern District of New York defendant, Cohen, did aid and assist in the preparation and presentation to the Collector at Albany N.Y. the false tax return of defendant, Jursykowski. The fourth complaint charged Cohen with a similar offense relative to Schenker's 1948 return.
At the time the complaints were filed, a grand jury was in session in the Northern District of New York at Albany. That grand jury was discharged on June 14, 1955. The next grand jury impanelled in the Northern District of New York began its deliberations September 1955 and reported this indictment on December 1, 1955. The session of that grand jury extended beyond that date.
Other facts which are not in dispute are referred to briefly. During all of the times pertinent here, the defendants were residents of the Southern District of New York. The tax returns involved were prepared and executed in the Southern District of New York. The defendant, Cohen, assisted in the preparation of both Schenker's and Jurzykowski's returns but his personal activities in connection therewith all occurred in the Southern District of New York and he performed no further service for either Jurzykowski or Schenker in connection with the returns after the delivery to them of said returns on May 14, 1949. Both income tax returns were filed in the Collector's office at Albany on May 16, 1949.
It also is undisputed that defendant, Jurzykowski, was outside of the United States on eight separate occasions between January 1, 1950 and April 1, 1952 for a total of four hundred and twenty-eight days. The length of the absences varied from twenty-one days in December 1950 to one hundred and one days from May 1, 1950 to August 10, 1950. Defendant Schenker was outside the United States on six separate occasions during the same period for a total of two-hundred and ninety-one days. The duration of his absences varied from twenty-three days in 1951 to seventy-eight days in 1953. Neither Jurzykowski nor Schenker ever maintained a residence in the Northern District of New York.
There is no showing or claim that defendant, Cohen, was absent from the Southern District of New York for any appreciable or specific time during the relevant time period. He never resided or maintained a place of business in the Northern District of New York.
It is the contention of the Government that the statute of limitations was tolled as against all three defendants by the filing of the complaints, above referred to, with Commissioner Conan on May 16, 1955. It also contends that the statute was tolled as to defendants, Jurzykowski and Schenker, by reason of the provisions of Title 26 U.S.C.A. § 3748 which provides '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 defendants contend that the complaints filed by the Revenue Agent before Commissioner Conan were insufficient to toll the statute in that they failed to show probable cause, the allegations thereof being necessarily based upon information and belief of the complaining agent. They assert that the provision of Section 3748, referred to above, is not applicable here since a grand jury was in session at the time the complaints were filed and that there is a fatal variance between the complaints and the indictment. They also contend that no warrant or summons having been issued by the Commissioner that the action taken before him was insufficient to toll the statute.
As far as absences of Jurzykowski and Schenker from the district and from the country are concerned, the defendants contend that they were business trips of short duration; that they did not interfere with any criminal ...