MILLER v. U. S., 419 U.S. 970 (1974)
Syllabus
U.S. Supreme Court
MILLER v. U. S. , 419 U.S. 970 (1974)42 L. Ed. 2d 186 419 U.S. 970
Irving E. MILLER and Frederick T.
Hyman
v.
UNITED STATES.
No. 73-1724.
Supreme Court of the United States
October 29, 1974
On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice BLACKMUN, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
On In eight of the 12 counts petitioners were charged with income tax fraud, in violation of 7206(1) of the Internal Revenue Code of 1954, 26 U.S.C. 7206(1).1 The indictment alleged that the
acts that were the subject of four of the fraud counts (counts II-V, inclusive) were committed on July 18 and 21, 1966, respectively.
Section 6531 of the Code, 26 U.S.C. 6531,2 provides a 6-year period of limitations for offenses under 7206(1). The indictment, obviously, was returned after the expiration of the 6-year period and, without more, would be subject to dismissal as out-of-time. See Benes v. United States, 276 F.2d 99, 107-109 (CA6 1960).
Section 6531, however, has as its penultimate sentence the following:
'Where a complaint is instituted
before a commissioner of the United States within the period above
limited, the time shall be extended until the date which is 9
months after the date of the making of the complaint before the
commissioner of the United States.'
With respect to the alleged offenses of July 18 and 21, 1966, a
complaint was filed by the Government with a commissioner of the
United States on July 17, 1972, just within the 6-year period. The
record contains an [419 U.S. 970, 972]
Opinions
v.
UNITED STATES.
No. 73-1724.
Supreme Court of the United States October 29, 1974 On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit. The petition for a writ of certiorari is denied. Mr. Justice BLACKMUN, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting. On In eight of the 12 counts petitioners were charged with income tax fraud, in violation of 7206(1) of the Internal Revenue Code of 1954, 26 U.S.C. 7206(1).1 The indictment alleged that the Page 419 U.S. 970, 971 acts that were the subject of four of the fraud counts (counts II-V, inclusive) were committed on July 18 and 21, 1966, respectively. Section 6531 of the Code, 26 U.S.C. 6531,2 provides a 6-year period of limitations for offenses under 7206(1). The indictment, obviously, was returned after the expiration of the 6-year period and, without more, would be subject to dismissal as out-of-time. See Benes v. United States, 276 F.2d 99, 107-109 (CA6 1960). Section 6531, however, has as its penultimate sentence the following:
U.S. Supreme Court
MILLER v. U. S. , 419 U.S. 970 (1974) 42 L. Ed. 2d 186 419 U.S. 970 Irving E. MILLER and Frederick T. Hymanv.
UNITED STATES.
No. 73-1724.
Supreme Court of the United States October 29, 1974 On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit. The petition for a writ of certiorari is denied. Mr. Justice BLACKMUN, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting. On In eight of the 12 counts petitioners were charged with income tax fraud, in violation of 7206(1) of the Internal Revenue Code of 1954, 26 U.S.C. 7206(1).1 The indictment alleged that the Page 419 U.S. 970, 971 acts that were the subject of four of the fraud counts (counts II-V, inclusive) were committed on July 18 and 21, 1966, respectively. Section 6531 of the Code, 26 U.S.C. 6531,2 provides a 6-year period of limitations for offenses under 7206(1). The indictment, obviously, was returned after the expiration of the 6-year period and, without more, would be subject to dismissal as out-of-time. See Benes v. United States, 276 F.2d 99, 107-109 (CA6 1960). Section 6531, however, has as its penultimate sentence the following:
'Where a complaint is instituted
before a commissioner of the United States within the period above
limited, the time shall be extended until the date which is 9
months after the date of the making of the complaint before the
commissioner of the United States.'
With respect to the alleged offenses of July 18 and 21, 1966, a
complaint was filed by the Government with a commissioner of the
United States on July 17, 1972, just within the 6-year period. The
record contains an
Page 419 U.S.
970, 972
acknowledgment, and discloses, that the Government's case had
been prepared a week or 10 days before the expiration of the 6-year
period; that there was time for the prosecution to have presented
the case to a grand jury within that period; that a grand jury had
been empaneled in the district; that, in fact, a grand jury of the
district had sat in July 1972, including, specifically, the 13th
and 20th days of that month; and that the situation was not one
where a grand jury of the district was not in session during the
closing days of the limitation period.
A defense motion to dismiss the four counts was granted by the
District Court. The Court of Appeals reversed. 491 F.2d
638, 644-646 (CA5 1974).
In Jaben v. United States, 381 U.S. 214, 85 S. Ct.
1365, 14 L. Ed. 2d 345 (1965), 6531 was construed to apply to a
situation where the Government had developed its case within the
time period prescribed by the statute of limitations, but was
unable to obtain an indictment because a grand jury was not in
session. Mr. Justice Harlan, in speaking for the Court
observed:
'More basically, the evident
statutory purpose of the nine-month extension provision is to
afford the Government an opportunity to indict criminal tax
offenders in the event that a grand jury is not in session at the
end of the normal limitation period. This is confirmed by the
immediate precursor of the present section which provided for an
extension 'until the discharge of the grand jury at its next
session within the district.' I.R.C. 1939, 3748(a). Clearly the
statute was not meant to grant the Government greater time in which
to make its case (a result which could have been accomplished
simply by making the normal period of limitation six years and nine
months), but rather was intended to deal
Page 419 U.S.
970, 973
with the situation in which the Government has its case made
within the normal limitation period but cannot obtain an indictment
because of the grand jury schedule.' (Footnote omitted.) 381 U.S.,
at 219-220, 85 S. Ct. 1365.
Mr. Justice Goldberg, in a separate opinion, concurring in part
and dissenting in part, and joined by Chief Justice Warren and Mr.
Justice Douglas, echoed this conclusion:
'I agree with the Court that the
purpose of the tolling provision in the statute of limitations
before us, as evidenced by its language and its legislative
history, is to avoid penalizing the Government when a criminal
defendant cannot be indicated merely because no grand jury is
sitting at the time the limitation period expires. In keeping with
this purpose, the Government ought to be allowed to present a case
prepared before the expiration of the limitation period to the
grand jury when it next convenes, but it ought not to be allowed to
take advantage of a nine-month extension to prepare a case which
was not ready for submission before the end of the statutory
period.' Id. , at 226, 85 S. Ct. 1365.
This analysis of the purpose of the significant sentence of
6531, although not determinative of the issues in Jaben, remains as
this Court's primary interpretation of the statute.
The Government's position, however, as expressed in its
memorandum in opposition to the petition for certiorari,3 is
essentially that the 6-year limitation period for
Page 419 U.S.
970, 974
an offense under 7206(1) is automatically extended and converted
into a 6-year and 9-month period, at the Government's option, by
its mere filing of an appropriate complaint with a commissioner of
the United States before the expiration of the 6-year period.
The Government, possibly, is right, but its position, under the
circumstances of this case, appears to me to be not entirely
consistent with what was said in the respective opinions in Jaben
by Justices Harlan and Goldberg. I therefore would grant the
petition for certiorari and test the Government's position only
upon full briefing and argument.
Footnotes
Footnote 1 7206. Fraud and
False statements.
'Any person who--
'(1) Declaration under penalties of
per-jury.
'Willfully makes and subscribes and
return, statement, or other document, which contains or is verified
by a written declaration that it is made under the penalties of
perjury, and which he does not believe to be true and correct as to
every material matter . . . shall be guilty of a felony and, upon
conviction thereof, shall be fined not more than $5,000, or
imprisoned not more than 3 years, or both, together with the costs
of prosecution.'
Footnote 2 ' 6531. Periods
of limitation on criminal prosecutions.
'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 3 years next after the commission of
the offense, except that the period of limitation shall be 6
years--
...
'(5) for offenses described in
section 7206(1) (1) and 7207 ( relating to false statements and
fraudulent documents).'
Footnote 3 'The statute
simply permits the filing of a complaint prior to the end of the
limitations period as a means of extending the time for the
issuance of an indictment . . .. The purpose of the complaint
procedure is to allow the government additional time to present the
matter to the grand jury once it case is made.' Memorandum for the
United States in Opposition 3.
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