The opinion of the court was delivered by: ZAVATT
The defendant moves to dismiss the indictment under the fifth and sixth amendments and Fed.R. Crim.P. 48(b). The motion is denied.
The indictment charges the defendant in four counts with having filed false and fraudulent tax returns on behalf of himself and his wife for the years 1960 (Count I), 1961 (Count II), 1962 (Count III), and also with having filed or having caused to be filed a false and fraudulent return on behalf of Senate Realty Corporation, of which he was an officer and stockholder for 1962 (Count IV). All four counts charge that the defendant, by filing these fraudulent returns, attempted to evade income taxes owing to the Government in violation of 26 U.S.C. § 7201.
According to the Government's brief in opposition to the motion, the initial contact with the defendant was by a special agent on February 14, 1963, over seven years ago. This fact indicates, as defendant has suggested in his moving papers, that his tax returns must have been under investigation prior to this date. Three years passed during which time the Government, according to its papers in opposition, was processing the special agent's findings. Finally, on March 7, 1966, after the agent's report was reviewed by both the Assistant Regional Commissioner of the Intelligence Division, and the Regional Counsel of the Bureau of Internal Revenue, the Regional Counsel held a conference with the defendant. Later that same year (August 8), the case was transmitted to the Department of Justice and, on November 16, 1966 and January 4 and 5, 1967, further conferences were held between the defendant and the Department of Justice. Apparently, the defendant could not successfully exculpate himself at these conferences to the satisfaction of the Department of Justice and, on February 6, 1967, the case was transmitted to the United States Attorney for the Eastern District of Pennsylvania. After evidence was presented to the grand jury, two indictments were returned - #22785 on February 13, 1967 and #22872 on April 14, 1967.
Before recounting the further peregrinations of these indictments, it is necessary to detail the history of an unrelated case involving this defendant which overlaps, in time, the history of the indictment now at issue. Defendant was indicted by a grand jury of the United States District Court for the District of Columbia for an alleged S.E.C. violation on March 22, 1966, and was arraigned on April 8 of that year. The trial did not commence until March 13, 1967, shortly after indictment #22872 was returned in Pennsylvania. A jury verdict of guilty was returned on May 5, 1967. His conviction was reversed on appeal on November 7, 1969.
Because defendant was on trial in the District of Columbia when the second indictment was returned on April 14, 1967, said indictment was impounded by order of the Pennsylvania District Court, (see Appendix A to the Government's brief in opposition), the same day that it was handed up. That order further directed that a copy of the indictment be delivered to defendant's counsel. Although the motion to seal that indictment was made in the interest of the defendant, by the Government, defendant appears to have consented to the motion and the order presumably to prevent any prejudice that might have ensued in the S.E.C. case then on trial had the indictment become a public record. (See Appendix B annexed to the Government's brief in opposition.) Although the jury verdict was rendered in the S.E.C. case May 5, it was not until November 1, 1967 that the Government moved to open the sealed indictment, and the motion was granted on that date. (See Appendix C of Government's memorandum in opposition). It is important to note for later consideration that defendant's lawyer opposed the unsealing of this indictment, by letter dated September 28, 1967, preferring instead to await the determination of a motion for a new trial in the S.E.C. case. (See Appendix E, Government's memorandum in opposition.)
By motion dated November 28, 1967, the defendant, pursuant to 18 U.S.C. § 3237(b), elected to have the Pennsylvania indictments transferred to this district, in which he resided when the alleged offenses were committed. The order granting the motion was signed that day and both indictments were ordered transferred to this court where they were received on December 1, 1967. The earlier of these two indictments was assigned docket number 67-CR-453; the later one, presently in question, 67-CR-452.
For two years these indictments remained in this court, with neither the prosecution nor the defense taking any formal action thereon, while defendant's appeal from the S.E.C. conviction was pending. On November 7, 1969 the District of Columbia Court of Appeals reversed the S.E.C. conviction. At long last, on November 25, 1969, (and, as a result of this court's request) the defendant was informed by the United States Attorney that his cases would be placed on the calendar of this court for the first time on December 8, 1969. On that date, the defendant's attorney finally filed his notice of appearance although the cases had been pending in this court for over two years. That same day the court gave said attorney two weeks to make any motions he desired. Perhaps spurred on by the two year period of inactivity, defendant suddenly made thirteen motions, all returnable December 19, 1969, relating to the two indictments. After one adjournment, the motions were heard on January 16, 1970. At that time, the Government informed the court that indictment 67-CR-453 was being dismissed, and all motions relating thereto were withdrawn. Argument was heard on the several motions relating to the indictment 67-CR-452, among which was the present motion to dismiss.
1. That count I of the indictment is barred by the Statute of Limitations.
2. That the indictment should be dismissed because defendant has been denied his sixth amendment right to a speedy trial.
3. That the court should, in the alternative, exercise its discretion to dismiss under Fed.R.Crim.P. 48(b) for failure to prosecute.
4. That the indictment should be dismissed on either the fifth or sixth amendment grounds due to the preindictment delay.
The Statute of Limitations Defense to Count I.
Defendant argues that count I is time-barred as a result of its being sealed prior to the expiration of the statutory period but opened subsequent to that date. Specifically, the defendant argues that the six-year period would have expired in July, 1967; that, although the indictment was returned in April, 1967, it was not opened until November of that year. There is no dispute that, if the indictment had not been returned until November, count I would be time-barred. The question is whether the sealing of the indictment ...