The opinion of the court was delivered by: FORMAN
On November 18, 1941, a grand jury in New Jersey indicted three brothers, Athanael, Elias and George Eliopoulos, on two counts (Indictment 514c). In the first count it charged that the defendants together with others not named as defendants, between January 1, 1929, and August 1, 1930, conspired to defraud the United States of internal revenue taxes upon narcotic drugs imported into the United States in violation of Title 18 U.S.C.A. § 88. In essence it was charged that the alleged conspiracy contemplated that these defendants while in Paris, France, and other places in Europe schemed to sell to other conspirators named, but not as defendants, large quantities of narcotic drugs to be smuggled into the United States. In order to facilitate this purpose the defendants packed the drugs in cases similar to those used for shoes, glass bulbs and other merchandise and mingled such packages together for shipment to the United States after giving to the cases of drugs particular identifying numbers. Upon the arrival of these cases in the United States they were secured by the other conspirators. As part of the bargain the other conspirators were to reserve 25 kilograms of each 100 kilograms of drugs which were to be sold for the account of these defendants to whom was to be transmitted the proceeds of such sales. Only one overt act is charged in the indictment, namely that on July 18, 1930, these defendants imported into the United States at Hoboken, New Jersey, in this district, on board the S.S. Innoko, ten cases of glass bulbs concealed in three of which was a quantity amounting to 100 kilograms of morphine. The second count charged the defendants with the substantive offense of having received, concealed, etc., at Hoboken, New Jersey, 100 kilograms of morphine after it had been fraudulently and unlawfully imported into the United States in violation of Title 21 U.S.C.A. § 174.
On December 18, 1941, the same grand jury presented another indictment (No. 567c) against the defendants. This indictment also contained two counts. The first count charged the same defendants with having on July 18, 1930, violated the revenue laws of the United States relating to the tax imposed by law on the importation of morphine, by importing 220 pounds of morphine (the equivalent of 100 kilograms) and failing to pay taxes on the same. The second count of this indictment charged that on August 1, 1930, the same defendants having imported into the United States on July 18, 1930, about 220 pounds of morphine, and being charged with the duty of making to the Collector of Internal Revenue for the Fifth District of New Jersey a true monthly return of all morphine imported by them, failed to make any monthly return or other return to the said Collector of Internal Revenue.
The defendants Elias and George Eliopoulos (Athanael did not appear) filed a special plea in bar to the first indictment, which was the only one about which they had notice at that time. When their attention was drawn to the second indictment it was agreed that this special plea should be considered as if addressed to both indictments.In it the defendants pleaded that the indictments were not found within either three or six years after the alleged crimes and offenses were committed and therefore the prosecution for such alleged crimes and offenses is barred by the statutes of limitations of the United States.
The government filed a replication denying that the prosecution of the defendants is so barred.
On the issue thus raised it was stipulated that the defendants Elias and George Eliopoulos entered the United States from Greece in 1941; that they were natives of that country and although Elias had visited the United States in 1919 George had never been in the United States prior to their arrival in 1941.
The government abandoned the second count in the first indictment (514c). The first count, charging conspiracy to defraud the United States, remained.
The pertinent parts of the Limitation Statutes found in Title 18 U.S.C.A., under which the defendants seek protection, are as follows: "No person shall be prosecuted, tried, or punished for any offense, not capital, except as provided in section 584 of this title, unless the indictment is found, or the information is instituted, within three years next after such offense shall have been committed." 18 U.S.C.A. § 582.
Section 584 applies a five-year limitation to prosecutions arising under the slave trade laws of the United States.
By section 583 the provisions of section 582 are made inapplicable to any person fleeing from justice.
Section 585 provides: "No person shall be prosecuted, tried, or punished for any of the 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. For offenses involving the defrauding or attempting to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner, the period of limitation shall be six years, which period of limitation shall not apply to acts, offenses, or transactions which were barred by law on June 2, 1924.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. * * *"
(1) It charges the defendants with having conspired to defraud the United States of taxes by an agreement or scheme concocted in Europe and for its only overt act alleges that these very defendants imported drugs at Hoboken, New Jersey on July 18, 1930. The government now concedes that the defendants were not in Hoboken on July 18, 1930, or at any other time and therefore the indictment alleges no agreement in New Jersey and has no overt act committed in this district to sustain it.
(2) It is outlawed under section 582 as being presented more than three years after the ...