The opinion of the court was delivered by: LORD
The defendants, Tanz and Gordon, were both indicted on July 14, 1955, for violation of 18 U.S.C. 371, a general conspiracy statute. On the same date, Norman Tanz alone was also indicted for violation of 26 U.S.C. 4047(e) charging conspiracy to defraud the United States while an Internal Revenue Agent. The following October 4, 1955, upon arraignment, both defendants entered pleas of not guilty. At the same time defendants filed the present Motions to Dismiss the indictments.
The issues are as follows:
1. Is the statute of limitations a bar to both indictments since the indictments were returned over three years after the alleged offenses?
2. Is Tanz properly indicted with Gordon under the general conspiracy statute (Indictment 18459, 18 U.S.C. 371) when he has also been indicted in his former capacity as an Internal Revenue Agent (Indictment 18458, 26 U.S.C. 4047(e))?
3. Does indictment 18458, against Tanz alone, state sufficient facts to constitute a crime against the United States?
They will be considered in that order.
1. The defendants allege that the applicable period of limitations expired prior to the filing of the indictments against them. Under this indictment (No. 18459), the defendants were together indicted for violation of 18 U.S.C. 371.
The statute governing the period of limitations for violation of 18 U.S.C. 371 is found in 18 U.S.C. 3282. Prior to September 1, 1954, 18 U.S.C. 3282 read as follows:
'3282. Offenses not capital
'Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within three years next after such offense shall have been committed. June 25, 1948, c. 645, 62 Stat. 828.' (Emphasis supplied.)
However, that Act is not operative if another statute governs. This is because of the qualifying provision of 18 U.S.C. 3282: 'Except as otherwise expressly provided by law'.
There is such a statute. It is 26 U.S.C. 3748, which reads as follows:
'For offenses arising under section 37 of the Criminal Code, March 4, 1909, 35 Stat. 1096 (U.S.C., Title 18, 88), (now Title 18, 371), where the object of the conspiracy is to attempt in any manner to evade or defeat any tax or the payment thereof, the ...