by the fact that the addresses of the defendants appear on the summonses themselves. The cases cited by the Government involving the issuance of a summons after the statute of limitations has run do not apply because, in the instant case, it is our opinion that no service whatsoever has taken place.
It also appears irrelevant that subsequent to the alleged service, counsel for the defendants entered into negotiations with the Government in an attempt to bring about a withdrawal of the prosecution. We feel that the defendants themselves should not be prejudiced by this fact. If counsel for the defense were successful in bringing about the abandonment of prosecution, the present controversy would not have arisen.
Absent any authority sanctioning service other than as provided by Rule 4, we feel that the complaint was not properly 'instituted.' Thus the Government was deprived of the additional time granted by § 3748(a) of the 1939 Code: i.e. 'until the discharge of the grand jury at its next session within the district.'
Only one question remains. The Government further contends that the statute of limitations was tolled because the defendants were not residents of the district at the time of the offense, nor were they ever residents of the district. For this proposition, they cite section 3748 of the 1939 Code:
'* * * The time during which the person committing any of the offenses above mentioned is absent from the district wherein the same was committed shall not be taken as any part of the time limited by law for the commencement of such proceedings * * *'.
There is no question as to the applicability of this section in a proper case as it was specifically saved by § 6531 of the 1954 Code.
There seems to be a split of authority, however, on whether or not this section shall apply to situations where the defendant has not wilfully absented himself from the jurisdiction. The Government cites many cases wherein the statute was tolled while the defendant was absent from the Judicial District. In opposition, counsel for the defense cites the well reasoned case of United States v. Beard, D.C.Md.1954, 118 F.Supp. 297, which is factually closer to the instant situation than any of the others and whose approval is evidenced by the changes made in the 1954 Code.
Beard distinguishes all but one case cited by the Government (that one being subsequent to Beard and factually distinguishable itself). It seems that in all the cases where the statute was held to be a bar, the defendant either removed himself from the district or was out of the country and beyond process initially. The only case directly on all fours with ours is the Beard decision, where the defendant Resided outside the Judicial District at all times. There Judge Chesnut held that the intention of Congress was not to include citizens who did not absent themselves from the district but resided elsewhere at all times.
With this reasoning we agree.
The Government's failure to serve the defendants in this case according to the Rules of Criminal Procedure is fatal.
The motion to dismiss the indictment is therefore granted.