APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (DC. Crim. 84-00362)
Before: WEIS, HIGGINBOTHAM, and BECKER, Circuit Judges.
In this appeal from a criminal conviction, defendant for the first time asserts that prosecution was barred by the statute of limitations. Because it was not raised in the district court, we hold that the defense was waived. Therefore, we will affirm the judgment of the district court.
After a bench trial, defendant was found guilty of six counts of willful failure to file income tax returns. The court sentenced defendant to one year imprisonment on each count, suspended the term, and placed him on probation for five years. In addition, a fine of $10,000 was imposed on each count.
Defendant has appealed, contending that he district court lacked jurisdiction over him because he is not a "person" within the meaning of 26 U.S.C. § 7203. That section imposes an obligation to file a return on "any person" required to pay taxes. In the alternative, defendant argues that the court erred in failing to consider his good faith belief that he was not a person subject to prosecution under § 7203. These contentions are frivolous and require no discussion. See United States v. Isenhower, 754 F.2d 489 (3d Cir. 1985); United States v. Koliboski, 732 F.2d 1328 (7th Cir. 1984).
Defendant further asserts that Count 1 of the indictment charging failure to file a return for the 1977 taxable year falls outside the six-year statute of limitations. Therefore, he contends, the district court lacked jurisdiction over that count. Defendant did not make this argument below and raises it here for the first time. The government insists that the defendant's objection is untimely because the state of limitations is an affirmative defense that will be deemed waived if not asserted at or before trial.
Section 6531 of the Internal Revenue Code provides that "no person shall be prosecuted, tried, or punished for any of the various offenses arising under the internal revenue laws unless the indictment is found or the information instituted" within six years of the commission of the offense of willfully attempting to evade the payment of taxes. Since count 1 was field after the statute of limitations had run, the issue is whether the defendant's conviction on that count is valid nevertheless.
In the criminal law field, the statute of limitations provides that a person shall not be prosecuted after a specified period of time. The argument thus follows that once the limitations period has elapsed a court is precluded from exercising jurisdiction. Two courts of appeals have adopted this approach. See Waters v. United States, 328 F.2d 739 (10th Cir. 1964); Benes v. United States, 276 F.2d 99 (6th Cir. 1960).
In Waters, the court said that in criminal cases, the statute of limitations "is not a mere limitation upon the remedy, but a limitation upon the power of the sovereign to act against the accused." 328 F.2d at 743. The statute restrains the power to prosecute, and is therefore jurisdictional and noticeable for the first time on appeal. Id.
The view expressed in Waters are contrary to those articulated by the majority of the courts of appeals. The Second, Fourth Seventh, Ninth, and D.C. Circuits have held that the running of the statute of limitations does not defeat jurisdiction and that failure to assert the statute will constitute a waiver. See United States v. Meeker, 701 F.2d 685 (7th Cir. 1983) (statute of limitations an affirmative defense that may be waived); United States v. Walsh, 700 F.2d 846, 855 (2d Cir. 1983) ("statute of limitations is an affirmative defense, . . . not cognizable on appeal unless properly raised below"); United States v. Williams, 684 F.2d 296 (4th Cir. 1982) (statute of limitations is not jurisdictional, but an affirmative defense that may be waived); United States v. Akmakjian, 647 F.2d 12 (9th Cir. 1981) (accused may waive the defense); United States v. Wild, 179 U.S. App. D.C. 232, 551 F.2d 418 (D.C. Cir. 1977) (statute is an affirmative defense that may be waived).
In an extradition proceeding, the Supreme Court stated, "The statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases." Biddinger v. Commissioner of Police, 245 U.S. 128, 135, 38 S. Ct. 41, 62 L. Ed. 193 (1917). See United States v. Cook, 84 U.S. 168, 178, 21 L. Ed. 538 (1872). See also 1 Wright & Miller, Federal Practice & Procedure § 193 (2d ed. 1982); 8 Moore's Federal Practice P 12.03 (1985). Note, Waiver of the Statute of Limitations in Criminal Prosecutions, 90 Harv. L. Rev. 1550 (1977); Comment, The State of Limitations in a Criminal Case: Can it be Waived? 18 Wm. & Mary L. Rev. 823 (1977).
This court's opinions have created some uncertainty as to which position we have adopted. In United States v. Waldin, 253 F.2d 551 (3d Cir. 1958), the petitioner contended for the first time in his petition for rehearing that the running of the statute barred the criminal prosecution. the court rejected that argument, and noted that "There is good authority which hold that this objection comes ...