States in respect to its internal revenue." The court comments on such a contention in the following language:
"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 section 1044 [ 18 U.S.C.A. § 582]. 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 section 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." United States v. McElvain, 272 U.S. 633, 639, 47 S. Ct. 219, 220, 71 L. Ed. 451.
This brings us to a consideration of the second indictment. The issue raised under it rests in a very narrow groove. This indictment does charge substantive offenses arising under the Internal Revenue Stattutes of the United States. Whether the offenses charged are ruled by a three-year or six-year limitation is immaterial because the indictment is found admittedly approximately eleven years subsequent to the commission of the alleged offense. Under this statute there is a qualification to the limitation in that "the time during which the person committing the offense is absent from the district wherein the same is committed shall not be taken as any part of the time limited by law for the commencement of such proceedings."
Attention has been directed by both defendants and the government to the case of Brouse v. United States, 1 Cir., 68 F.2d 294. In that case the defendant was indicted for using the mails in a scheme to defraud based on sending four letters from outside the District of Massachusetts to the complaining witness at Boston. The last one was dated October 10, 1929, and the indictment was found on February 15, 1933, more than three years after the alleged commission of the offense.
A plea in bar was filed by the defendant who set up that the indictment was outlawed by the passing of more than three years after the alleged commission of the crime. The government replied that the prosecution was not barred because the "defendant was a person fleeing from the justice of this Honorable Court during the period between the the commission of the offenses and the date of the filing of the indictment." It was stipulated that the defendant was not "actually or physically" in the District of Massachusetts when any of the letters in question was mailed.They were all mailed outside of the District of Massachusetts. The trial court overruled the plea in bar. It was sustained by the First Circuit Court of Appeals. The position of the defendant in that case was that a person cannot be a fugitive from justice in a district in which he was not present at the time when the crime charged was committed, and that constructive presence within a district or state which may be sufficient to warrant conviction if the defendant be found there is not sufficient to make him a fugitive from justice. As to this contention the Court says: "That this is so under the extradition statutes seems clear." 68 F.2d at page 295. It then proceeds to differentiate the case before it from an "extradition" case and concludes that the states are independent jurisdictions whose powers do not extend beyond their own borders while the powers of the United States extend through its territory and its districts are merely administrative divisions standing historically and practically on very different footing from the states. The right to arrest a person who violates the federal law in any district where he may be found and remove him for trial to the district where the crime was committed is as broad as the right to prosecute. Under the statute under which Brouse was being prosecuted the delivery of a letter in a district different from that in which it was mailed subjected the defendant to prosecution in the district of delivery. The court reviewed the cases dealing with flight from justice and concluded:
"Whether a person is during any given period a fugitive from justice in the federal courts is, as these decisions make clear, a question of fact to be determined from his acts and intent. There is nothing artificial about it, as there is in extradition cases, no necessity that the defendant should have been actually present in the district where he is wanted for trial and have run from there. The fleeing which tolls the statute is flight from the justice of the United States, not the justice of any particular district." Brouse v. United States, 1 Cir., 68 F.2d 294, 296.
In the case before us where the defendants were concededly resident in a foreign country at the time of the alleged commission of the offenses the reasoning of the above case is certainly in their favor and logically so. It is impossible to conceive of them as fleeing the jurisdiction of the District of New Jersey under the admitted state of facts. The government, however, maintains that even though they did not flee, they were "absent" from the district as contemplated by section 585, and again I cannot agree with the construction it seeks to place upon the statute. Statutes of limitation are founded upon the liberal theory that prosecutions should not be allowed to ferment endlessly in the files of the government to explode only after witnesses and proofs necessary to the protection of the accused have by sheer lapse of time passed beyond availability. No reason is advanced why the government did not indict these defendants within a reasonable and legal period, at least under the "John Doe" nomenclature if no other.Not having done so, the defendants seem to me to be clearly within the purview of the statute and the pleas in bar to indictments 514c and 567c will be sustained.
An order in conformity herewith should be taken.
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