United States v. McElvain
272 U.S. 633
SCOTUS
1926
Check Treatment
Mr. Justice Butler

delivered the opinion of the Court.

Oсtober 3, 1924, defendants in error were indicted under § 37 of the Criminal Code (35 Stat.-1088, 1096) for conspiracy to defraud the United States in respеct of its internal revenue. It is charged that they. conspired to make a false income and profits tax return for 1920 for the Frеeman Coal Mining Company, and that they caused a false return to be prepared, sworn to and filed, and committed various other overt acts. But no act is alleged to have been done later than March 14, 1921, more than three years prior tо the indictment. Each of the defendants interposed a plea that the prosecution was barred because not сommenced within three years after the offense. The district court, being of opinion that the applicable period of limitation had expired, entered judgment sustaining the pleas and discharging the defendants. The case is here under the Criminal Apрeals Act, c. 2564, 34 Stat. 1246. United States v. Barber, 219 U. S. 72.

The question for decision is whether the applicable period is three years fixed by § 1044, Revised Statutes, ‍‌‌‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌‌​‌​‌‌‌​‌​‌​‌‌​​​‌​​‌‌​​​​‌​‌‍оr six years specified in a proviso added by the Act of November 17, 1921, c. 124, 42 Stat. 220.

It is necessary to consider a number of statutory рrovisions. Section 1044 provides': “No person shall be prosecuted . . . for any offense, not capital, except аs provided in section 1046, unless the indictment is found or the information is instituted' within three years next after such offense shall have been сommitted . . .” The defendants insist that the foregoing.provision applies. The government contends that the case is coverеd by the proviso: “Provided, however, That in offenses involving the defrauding or attempts to defraud the United States or any agency thereof, whether by сonspiracy or not, and in any manner, and now indictable under any existing statutes, the period of limitation shall be six years.” And the prоviso was made applicable to offenses theretofore committed and not already barred. Section 1046 prоvides: “ No person shall be prosecuted . . . for any crime arising under the revenue laws, or the slave-trade laws of the United States, unless the indictment is found or the information is instituted within five years next after the committing of such crime.”

The Act of July 5, 1884, c. 225, 23 Stat. 122, provides: ‍‌‌‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌‌​‌​‌‌‌​‌​‌​‌‌​​​‌​​‌‌​​​​‌​‌‍“ That no person shall be prosecuted ... for any of the various offenses arising under the internal revenue laws of the United Statеs unless the indictment is found or the information instituted within three years next after the commission of the offense, iii all cases where thе penalty prescribed may be imprisonment in the penitentiary, and within two years in all other cases. . . .”

This Act was amended by § 1321 of the Revenue Act of 1921, approved November 23, 1921, c. 136, 42 Stat. 315, which eliminated the two-year period so as to make the threе-year period apply to all offenses. And it'was further amended by § 1010 (a) of the Revenue Act of 1924, approved June 4, 1924, c. 234, 43 Stat. 341, which added the same proviso that- was added to § 1044. This latest amendment, passed after the offense here charged, аpplied the six-year period to offenses thereafter committed against the internal revenue laws and coverеd by the proviso.

The offense charged is a conspiracy and not one arising under the internal revenue laws; and it is not within the Aсt of July 5, 1884, as amended. The period applicable is either three years under ‍‌‌‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌‌​‌​‌‌‌​‌​‌​‌‌​​​‌​​‌‌​​​​‌​‌‍§ 1044 or six years under the proviso-. The government argues that defrauding the United States is an ingredient of the criipe charged, and that the six-year period applies. It reliеs on United States v. Noveck, 271 U. S. 201. But that case is not like this one. The question there involved was whether an allegation in an indictment for perjury (§ 125, Criminal Code), that the crime was committed for the “purpose of defrauding the United States,” took the case out of the general clаuse of § 1044. We held that the purpose stated was not an element of perjury as defined by statute, and that the extraneous fact alleged did not bring the case within the proviso-. When the opinion is read in the light of the issue presented and decided, it furnishes nо support for the government’s contention here.

The proper application of the proviso is to be found uрon a consideration of its scope as compared with that of the original section having regard to the other statutes of limitation. Section 1044 is comprehensive in language and purpose; it relates to all crimes, excepting only capital offenses and those arising under the ‍‌‌‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌‌​‌​‌‌‌​‌​‌​‌‌​​​‌​​‌‌​​​​‌​‌‍revenue laws and slave trade laws. The purpose of the added proviso was to carve out a special class of cases. It is to be construed strictly, and held to apply only to casеs shown to be clearly within its purpose. United States v. Dickson, 15 Pet. 141, 165; Ryan v. Carter, 93 U. S. 78, 83.

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 § 1044. The crime of conspiracy to commit an offense is distinct from the offense itself. The language of the рroviso cannot reasonably be read to include all conspiracies as defined by § 37. But if the proviso could be cоnstrued to include any conspiracies, obviously it would be limited to those to commit the substantive offenses which it covers. All the various offenses under the internal revenue laws are excepted from § 1044. The proviso relates to the preceding part of the section and can have no broader scope. Wayman v. Southard, 10 Wheat. 1, 30. And legislation contemporaneous with and subsequent to its passage shows that Congress intended that the proviso should not include such offenses. The proviso, and § 1321 were considered by Congress at the same time. The latter was enacted six days after the proviso; it relates exclusively to offenses under thе internal revenue laws. That section is to be applied rather than the general language of the proviso added to a statute that never covered such offenses. And § 1010 (a) which prescribes for them the same limitations as are fixed by the prоviso, was unnecessary if the proviso already applied.

The three-year period fixed by § 1044 is applicable, ‍‌‌‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌‌​‌​‌‌‌​‌​‌​‌‌​​​‌​​‌‌​​​​‌​‌‍and defendants’ pleas were rightly sustained.

Judgment affirmed.