United States v. Sidney A. Brodson , 234 F.2d 97 ( 1956 )

DUFFY, Chief Judge.

This is a criminal prosecution for alleged wilful attempted evasion of income tax for the years 1948, 1949 and 1950. The District Court dismissed the indictment before trial. The government appealed such dismissal to this Court. The question presently before us is defendant’s motion that the appeal should be certified to the Supreme Court of the United States.

Title 18 U.S.C. § 3731 provides:

“An appeal may be taken by and on behalf of the United States from the district courts to a court of appeals in all criminal cases, in the following instances:

“From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof except where a direct appeal to the Supreme Court of the United States is provided by this section.”

Said section further provides:

“An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances: * * * From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.”

It is conceded that defendant herein has not been put in jeopardy. Whether we should certify the appeal to the Supreme Court of the United States depends upon whether the district court sustained “a motion in bar.”

The order of the District Court was as follows:

“The defendant’s motion of August 15, 1955, to dismiss the indictment upon the grounds that the initiation of a criminal prosecution for tax evasion during the pendency of a jeopardy assessment and accompanying liens deprives the defendant of liberty and property without due process of law, in violation of the Fifth Amendment to the United States Constitution, and to the effective assistance of counsel for his defense, in violation of the Sixth Amendment to the United States Constitution, be and it is hereby granted and the indictment be and it hereby is dismissed.”

It will be noted from the wording of said order that the District Court recognized defendant’s objection was to the initiation of a criminal prosecution “during the pendency of a jeopardy assessment.” It was defendant’s claim that as a result of the jeopardy assessment and tax liens he was without funds to defray the expenses of his defense and, in particular, to engage the services of an accountant to aid in meeting the government’s proof as to net worth. The District Court held that the services of an accountant were essential to the effective assistance of counsel in this case.

Whether a plea is in abatement or in bar depends upon its content and effect. United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290; United States v. Murdock, 284 U.S. 141, 52 S. Ct. 63, 76 L.Ed. 210. A plea in abatement sets forth facts extrinsic to the merits which affect only the manner in which the action is framed or the circumstances under which it is sought to be prosecuted. It does not destroy the right of action but merely suspends or postpones its prosecution.

A plea in bar, on the other hand, sets forth matters which per se destroy the right of action and bars its prosecution absolutely, such as the bar of the statute of limitations. United States v. Goldman, et al., 277 U.S. 229, 48 S.Ct. 486, 72 L.Ed. 862, or the constitutional guarantee against self-incrimination. United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210.

The motion before us sets up facts extrinsic to the merits of the charge, namely, that the prosecution of the indictment during the pendency of the jeopardy assessment and accompanying tax liens deprived defendant of his constitutional rights to effective assistance of counsel and a fair trial. Clearly the motion was addressed to the circumstances under which the government sought to prosecute the indictment. What the District Court’s order did was to hold up or suspend the prosecution of the charges against Brodson until such time as the government would release sufficient funds so that he might prepare his defense. The fact that the writer of the brief which is before us indicates a view that authority did not exist to release any of the funds, and an Assistant United States Attorney communicated the same view to the District Court, surely is not the final word on that question.

Defendant argues that the statute of limitations has run in some instances during the pendency of the motion before us. Substantially the same argument was rejected in United States v. Storrs, 272 U.S. 652, 47 S.Ct. 221, 71 L.Ed. 460. In that case the defendant who was indicted for mail fraud filed a plea in abatement on the grounds of irregularities in the proceedings of the grand jury. The District Court sustained the plea and by the time the judgment was entered the statute of limitations had run. The United States brought writ of error to the Supreme Court claiming that under the circumstances the pitea was a special plea in bar. The appeal was dismissed, the court stating in 272 U.S. at page 654, 47 S.Ct. at page 221:

“* * * The question is less what it (the plea) is called than what it is. But while the quality of an act depends upon its circumstances the quality of the plea depends upon its contents. As was said at the argument, it cannot be that a plea filed a week earlier is what it purports to be, and in its character is, but a week later becomes a plea in bar because of the extrinsic circumstance that the statute of limitations has run. * * *

If another indictment cannot be brought, that is not because of the judgment on the plea, but is an independent result of a fact having no relation to the plea and working equally whether there was a previous indictment or not. * * * ”

The defendant has not raised by motion any questions as to the statute of limitation. We can cross that bridge when we come to it. We hold the motion to certify the cause to the Supreme Court of the United States must be and is hereby denied.