1. An indictment, under § 37 of the Criminal Code, for a
conspiracy to defraud the United States in respect of its internal
revenue by making a false income and profits tax return, is not
subject to the statute of limitations for offenses "arising under
the internal revenue laws" (Act of July 5, 1884, as amended), but
to the three-year limitation imposed by Rev. Stats. §1044. P.
272 U. S.
638.
2. A proviso was added to Rev.Stats. §1044, by the Act of
November 17, 1921, 42 Stat. 220,
viz.,
"That in offenses involving the defrauding or attempts to
defraud the United States or any agency thereof, whether by
conspiracy or not, and in any manner, and now indictable under any
existing statutes, the period of limitation shall be six
years."
Held:
(1) The purpose of the proviso is to carve out a special class
of cases, and it must be confined, by a strict construction, to the
cases clearly within its purpose. P.
272 U. S.
639.
(2) If the proviso relates to any conspiracies under Crim.Code §
37, it is limited to those to commit the substantive offenses which
it covers. It does not apply to a conspiracy to defraud the United
States in respect of internal revenue. P.
272 U. S.
639.
Affirmed.
Error, under the Criminal Appeals Act, to a judgment of the
District Court sustaining pleas of the statute of limitations in
bar of an indictment for conspiracy
Page 272 U. S. 634
to defraud the United States in respect of its internal
revenue.
Page 272 U. S. 636
MR. JUSTICE BUTLER delivered the opinion of the Court.
October 3, 1924, defendants in error were indicted under § 37 of
the Criminal Code (35 Stat. 1088, 1096) for conspiracy to defraud
the United States in respect of its internal revenue. It is charged
that they conspired to make a false income and profits tax return
for 1920 for the Freeman Coal Mining Company, and that they
caused
Page 272 U. S. 637
a false return to be prepared, sworn to, and filed, and
committed various other overt acts. But an act is alleged to have
been done later than March 14, 1921, more than three years prior to
the indictment. Each of the defendants interposed a plea that the
prosecution was barred because not commenced within three years
after the offense. The district court, being of opinion that the
applicable period of limitation had expired, entered judgment
sustaining the pleas and discharging the defendants. The case is
here under Criminal Appeals Act, c. 2564, 34 Stat. 1246.
United
States v. Barber, 219 U. S. 72.
It is necessary to consider a number of statutory provisions.
Section 1044 provides:
"No person shall be prosecuted, . . . for any offense, not
capital, except as provided in § 1046, unless the indictment is
found, or the information is instituted, within three years next
after such offense shall have been committed. . . ."
The defendants insist that the foregoing provision applies. The
government contends that the case is covered by the proviso:
"
Provided, however, that in offenses involving the
defrauding or attempts to defraud the United States or any agency
thereof, whether by conspiracy or not, and in any manner, and now
indictable under any existing statutes, the period of limitation
shall be six years."
And the proviso was made applicable to offenses theretofore
committed and not already barred. Section 1046 provides:
"No person shall be prosecuted, . . . for any crime arising
under the revenue laws, or the slave trade laws of the United
States, unless the indictment is found or the information is
instituted within five years next after the committing of such
crime."
The Act July of 5, 1884, c. 225, 23 Stat. 122, provides:
"That no person shall be prosecuted, . . . for any of the
Page 272 U. S. 638
various offenses arising under the internal revenue laws of the
United States unless the indictment is found or the information
instituted within three years next after the commission of the
offense in all cases where the penalty prescribed may be
imprisonment in the penitentiary and within two years in all other
cases. . . ."
This Act was amended by § 1321 of the Revenue Act of 1921,
approved November 23, 1921, 42 Stat. 315, c. 136, which eliminated
the two-year period so as to make the three-year period apply to
all offenses. And it was further amended by § 1010(a) of the
Revenue Act of 1924, approved June 2, 1924, 43 Stat. 341, c. 234,
which added the same proviso that was added to § 1044. This latest
amendment, passed after the offense here charged applied the
six-year period to offenses thereafter committed against the
internal revenue laws and covered by the proviso.
The offense charged is a conspiracy, and not one arising under
the internal revenue laws, and it is not within the Act of July 5,
1884, as amended. The period applicable is either three years under
§ 1044 or six years under the proviso. The government argues that
defrauding the United States is an ingredient of the crime charged,
and that the six-year period applies. It relies on
United
States v. Noveck, 271 U. S. 201. But
that case is not like this one. The question there involved was
whether an allegation in an indictment for perjury (§ 125, Criminal
Code) that the crime was committed for the "purpose of defrauding
the United States" took the case out of the general clause of §
1044. We held that the purpose stated was not an element of perjury
as defined by statute, and that the extraneous fact alleged did not
bring the case within the proviso. When the opinion is read in the
light of the issue presented and decided, it furnishes no support
for the government's contention here.
The proper application of the proviso is to be found upon a
consideration of its scope as compared with that
Page 272 U. S. 639
of the original section having regard to the other statutes of
limitation. Section 1044 is comprehensive in language and purpose;
it relates to all crimes, excepting only capital offenses and those
arising under the revenue laws and slave trade laws. The purpose of
the added proviso was to carve out a special class of cases. It is
to be construed strictly, and held to apply only to cases shown to
be clearly within its purpose.
United States v.
Dickson, 15 Pet. 141,
40 U. S. 165;
Ryan v. Carter, 93 U. S. 78,
93 U. S. 83.
The proviso relates to substantive offenses involving defrauding
or attempts to defraud the United States, whether committed by one
or more or by conspiracy or otherwise. It does not extend to any
offenses not covered by § 1044. The crime of conspiracy to commit
an offense is distinct from the offense itself. The language of the
proviso cannot reasonably be read to include all conspiracies
defined by § 37. But if the proviso could be construed to include
any conspiracies, obviously it would be limited to those to commit
the substantive offenses which it covers. All the various offenses
under the internal revenue laws are excepted from § 1044. The
proviso relates to the preceding part of the section, and can have
no broader scope.
Wayman v.
Southard, 10 Wheat. 1,
23 U. S. 30. And
legislation contemporaneous with and subsequent to its passage
shows that Congress intended that the proviso should not include
such offenses. The proviso and § 1321 were considered by Congress
at the same time. The latter was enacted six days after the
proviso; it relates exclusively to offenses under the internal
revenue laws. That section is to be applied, rather than the
general language of the proviso added to a statute that never
covered such offenses. And § 1010(a), which prescribes for them the
same limitations as are fixed by the proviso, was unnecessary if
the proviso already applied.
The three-year period fixed by § 1044 is applicable, and
defendants' pleas were rightly sustained.
Judgment affirmed.