Motion to
Dismiss
7207- Fraudulent
Returns, Statements, or Other Documents:
Motion to Dismiss
[64-1
USTC ¶9195]
United States of America
v. Myron V. Citron, Defendant
U.
S. District Court, So. Dist. N. Y., 62 Cr. 1059, 62 Cr. 221, 221 FSupp
454, 9/18/63
[1954 Code Sec. 7203]
Crimes: Failure to file returns: Venue.--Venue lies where taxes
are to be paid, either where the taxpayer resides or has his principal
place of business. Defendant's motion for dismissal on the ground that
the counts alleging non-filing of returns did not adequately plead venue
in the district where he maintained his principal place of business was
denied.
[Title 18 U. S. C. Sec. 1001 and 1954 Code Sec. 7207]
Crimes: False representation.--Defendant's motions for dismissal
were denied because: (1) even though the false representation charged,
which was to the effect that the taxpayer had filed his returns for
prior years, could be a misdemeanor under Code Sec. 7207, nothing
precluded that he could be proceeded against under this statute and
under 18 U. S. C. 1001; (2) whether the defendant was within the scope
of the "investigative exception" should be determined at
trial; (3) whether there was one or several offenses should also be
determined at trial; and (4) the pleadings adequately apprised defendant
of the charges against him. Finally, the government's cross-motion to
consolidate indictments was granted since the offenses charged were of
the same or similar character.
Robert
M. Morgenthau, United States Attorney, New York, N. Y., Arnold N. Enker,
Assistant United States Attorney, for U. S. Louis Bender, 173 Broadway,
New York, N. Y., for Citron.
Amended
Opinion
TYLER,
District Judge:
These
two indictments charge defendant with (a) failing to file federal income
returns for the calendar years 1955, 1956 and 1957 (62 Cir. 221, Counts
1, 2, and 3, respectively) (26 U. S. C. 7203); and, (b) falsely
representing to the Treasury Department on three separate occasions that
he had filed such returns or had paid all or a portion of his taxes due
for those years. (62 Cr. 221, Counts 4 and 5; 62 Cr. 1059, (one court))
(18 U. S. C. 1001).
I.
Defendant seeks dismissal of all counts, advancing several grounds for
this relief. These grounds are now dealt with seriatim:
(1)
Defendant urges that the three false representation counts do not fall
within Section 1001:
(a)
As to 62 Cr. 1059; defendant argues that the crime charged is squarely
covered by 26
U. S.
C. 7207, which makes it a misdemeanor to willfully deliver or disclose
any false return, account or statement to the Treasury Department. The
false representation charged in 62 Cr. 1059, which is to the effect that
defendant had filed a federal income tax return for the preceding five
years, was allegedly uttered in an "Application for Renewal of
Enrollment Card" filed by the defendant with the Treasury
Department in December, 1957. Defendant may be correct that this conduct
comes within the purview of 26
U. S.
C. 7207. But he points to no authority saying that 26 U. S. C. 7207 was
intended to repeal or render nugatory the provisions of 18 U. S. C.
1001. Nor do I find any warrant for reaching such a conclusion. Indeed,
since 26 U. S. C. 7207 deals with a specialized subject matter, and
requires that the false representation be "material", it is
possible, though not urged by the government here, that defendant could
be proceeded against under both statutes at once. Gore v.
United States
, 357
U. S.
386 (1958);
Burton
v.
United States
, 202
U. S.
344, 380-381 (1906).
(b)
As to Counts 4 and 5 in 62 Cr. 221, defendant argues in effect that 18
U. S.
C. 1001 is not meant to cover false exculpatory answers made to a
federal investigating agent. Several authorities have shown sympathy
with such an argument.
United States
v. Davey, 155 F. Supp. 175 (S. D. N. Y. 1957);
United States
v. Stark, 131 F. Supp. 190 (D. C. Md. 1955). The Court of
Appeals of this Circuit has suggested that such a rule upon appropriate
facts might have application, albeit a narrow one, in excluding from
Section 1001 "[t]he case of the citizen who replies to the
policeman with an exculpatory 'no' . . .". United States v.
McCue [62-1 USTC ¶9359], 301 F. 2d 452, 455 (2d Cir. 1962), citing Davey
and Stark, supra. This potential exception is based on the
history of Section 1001 as a statute seeking to prevent the
administration of government programs from being subverted or frustrated
by the false representations of interested parties. Although the line
between "administration" and "investigation" cannot
always be sharply drawn, it is arguable that the statute was not
intended to require, in every conceivable situation of its kind, a
citizen to answer truthfully questions put to him in the course of
police or other criminal investigation. Otherwise, the statute would
give powerful impetus to inquisition as a method of criminal
investigation. The exact scope of this possible "investigative
exception" to Section 1001 has not been established to my
knowledge; more important, its potention application would turn in any
event upon the peculiar facts of a given case.
The
court in
United States
v. McCue, supra, indicated three factors which, in that case,
made the putative exception inapplicable. They were: (i) the defendants
appeared voluntarily before the agents of the Internal Revenue Service
to whom they made the false representations; (ii) the defendants
testified under oath; and (iii) they testified with their counsel
present. (301 F. 2d, at p. 455).
These
factors moved the McCue case far from the basic situation which
the "investigative exception" presumably would cover, that of
a citizen directly approached by a law enforcement agent and asked
incriminating questions by such agent.
Thus,
defendant's arguments here are theoretical at this juncture; their
resolution must await full development of the relevant facts at trial.
(2)
Defendant contends that the three false representation counts seek to
prosecute one course of conduct for which only one conviction may be
obtained.
Even
if he were correct in this view, it is doubtful that defendant would be
entitled to the remedy of dismissal of any of these counts, at least at
this stage. United States v. Universal C. I. T. Credit Corp., 344
U. S. 218, 225 (1952). Whether there was "one offense" may be
answered with more assurance when the underlying facts are developed at
trial.
(3)
Defendant argues that the false representation counts are drafted with
insufficient precision in that they do not allege facts which negative
the possibility that the investigative-inquisitorial exception to
Section 1001, discussed supra, is applicable. An indictment need
not negative every conceivable defense in terms; the present pleadings
adequately apprise defendant of the charges against him.
(4)
Finally, defendant argues that the counts alleging non-filing of returns
(62 Cr. 221, Counts 1-3) do not adequately plead venue in this district.
Under 26 U. S. C. 7203, venue lies where the taxes were to be paid. United
States v. Commerford [1933 CCH ¶9255], 64 F. 2d 28, 32 (2d Cir.
1933). This is either where the taxpayer resides or has his principal
place of business. 26 U. S. C. 6091(b)(1). The counts in question
plainly allege that defendant maintained his principal place of business
in this district.
The
defendant fears that if, as appear to be the case, his residence is not
in this district, acquittal on this indictment would not bar prosecution
for nonpayment of taxes in the district of residence. Conceding that
theoretically the problem could later arise, it is not apparent to this
court that it either should, or could, be solved prospectively by
requiring changes in the phrasing of 62 Cr. 221.
The
motions of defendant to dismiss the indictments, therefore, are denied.
II.
There remains for consideration the government's cross-motion to
consolidate indictments 62 Cr. 221 and 62 Cr. 1059 for trial. Since
there can be no serious dispute but that the offenses charged in the two
indictments "are of the same or similar character", this
application is granted. Rule 8, F. R. Cr. P.; see also United States
v. Gottfried, 165 F. 2d 360 (2d Cir. 1948), cert. den. 330 U.
S. 860, rehearing den. 330 U. S. 883 (1948).
Settle
order in accordance with the foregoing.