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UNITED STATES v. SCHACK

June 5, 1958

UNITED STATES of America
v.
Harry SCHACK, Defendant



The opinion of the court was delivered by: WEINFELD

The defendant moves to dismiss an indictment, charging him with evasion of 1951 income taxes, on the ground that prosecution is barred by the statute of limitations. The limitation period is six years which may be extended for nine months 'where a complaint is instituted before a commissioner of the United States within the (six year) period * * *'. *fn1"

The parties are in accord that unless the statute was tolled, prosecution was barred on February 4, 1958. On the previous day, February 3, 1958, a grand jury before which evidence had been presented for several days, voted a no true bill.

 Prosecution officials, evidently disappointed, decided to file a complaint with the United States Commissioner in order to extend the statute of limitations pending resubmission of the charges to another grand jury.

 On February 4, 1958, the last day of the original limitation period, a special agent of the Internal Revenue Service appeared before, and was examined under oath, as to probable cause, by the United States Commissioner. The complaint was signed by the special agent, sworn to before the Commissioner, and then filed.

 The defendant contends that the complaint was not timely 'instituted' because no warrant was physically handed to a United States Marshal on the 4th day of February, 1958, the day the complaint was filed with the United States Commissioner, and hence the statute of limitations was not extended and prosecution is barred.

 The facts relating to the warrant do not appear to be in dispute. Upon the filing of the complaint, a warrant was signed by the Commissioner directed to the United States Marshal or any other authorized officer for the arrest of the defendant. The warrant was not physically delivered to the Marshal or to any other officer. Instead, the assistant United States attorney notified the defendant's counsel of the proceeding before the Commissioner and that it was desired to have the warrant executed that very day, February 4, 1958. The attorney stated he was unable to locate his client and it was arranged that the defendant would appear the following day, February 5th, for arraignment before the Commissioner.

 On February 5th the defendant appeared, was arraigned before the United States Commissioner, and the warrant was then delivered to a deputy marshal, who executed it. Subsequently the matter was submitted to another grand jury, which on March 5, 1958, voted a true bill of indictment -- the one now under attack.

 Thus, the essential issue is whether the complaint was 'instituted' before the Commissioner within the original six-year period. Admittedly, the complaint, when filed with the Commissioner on February 4, 1958, was within the six-year period. However, the defendant urges that neither this action, in and of itself, nor the action of the Commissioner in signing the warrant constitute the 'institution' of a complaint. He contends that to give vitality to the complaint a warrant must be physically delivered to the Marshal for execution, and since this was not done until February 5, 1958, one day after the original limitation period, the complaint was not 'instituted * * * within the period above limited (six years) * * *' as required by Section 6531 and hence prosecution is barred.

 The defendant relies upon Rule 4(a) of the Federal Rules of Criminal Procedure, which provides:

 If it appears from the complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. * * * (Emphasis supplied.)

 The defendant, of course, reads the words in the Rule 'shall issue to any officer' as meaning shall be physically delivered upon its issuance to such officer. I do not agree. I hold that a complaint has been instituted within the purview of Section 6531 of Title 26, when a Commissioner has examined under oath a person making a charge and upon finding probable cause, thereupon reduces the charge to writing and signs a warrant for the apprehension of the person named, as provided for in Rule 4(a).

 Thus, in the instant case, when the Commissioner on February 4, 1958, heard the special agent and then signed and filed the complaint containing the charge against the defendant and further signed the warrant which directed the United States Marshal to arrest the defendant, the complaint was timely instituted prior to the expiration of the original limitation period on February 4, 1958, and accordingly the time for the prosecution of the charge against the defendant extended for nine months.

 The defendant's contention that only by physical delivery of the warrant upon its issuance is validity given to the institution of the complaint before the Commissioner is neither practical nor required by the language of Rule 4. That rule simply states that if the Commissioner is satisfied that it appears from the complaint that probable cause exists 'a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it.' Thus, there was full compliance with Rule 4(a) when the warrant was signed by the Commissioner on February 4, 1958, directing the Marshal to arrest the defendant on the charge specified in the complaint, as to which the Commissioner found probable cause. This does not mean physically handing to the Marshal the warrant, but the act of the Commissioner in signing the warrant or initiating it, sending it on its way to the Marshal for execution within a reasonable time. *fn2" Such action meets the requirement of the Rule that a warrant 'shall issue'.

 This view finds support in Rule 4(c)(3), which provides that in executing the warrant for the arrest of a defendant 'the officer need not have the warrant in his possession at the time of arrest, but upon request he shall ...


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