# United States v. McElvain/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
272 U.S. 633
United States v. McElvain
Argued: Oct. 21, 1926. --- Decided: Dec 6, 1926
October 3, 1924, defendants in error were indicted under section 37 of the Criminal Code (35 Stat. 1088, 1096 (Comp. St. 10201)) for conspiracy to defraud the United States in respect of its internal revenue. It is charged that they conspired to make a false income and profits tax return for 1920 for the Freeman Coal Mining Company, and that they caused a false return to be prepared, sworn to and filed, and committed various other overt acts. But an act is alleged to have been done later than March 14, 1921, more than three years prior to the indictment. Each of the defendants interposed a plea that the prosecution was barred because not commenced 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 Criminal Appeals Act, c. 2564, 34 Stat. 1246 (Comp. St. § 1704). United States v. Barber, 219 U.S. 72, 31 S.C.t. 209, 55 L. Ed. 99.
The question for decision is whether the applicable period is three years fixed by section 1044, Revised Statutes (Comp. St. § 1708), or six years specified in a proviso added by the Act of November 17, 1921, c. 124, 42 Stat. 220 (Comp. St. § 1708).
It is necessary to consider a number of statutory provisions. Section 1044 provides:
'No person shall be prosecuted, * * * for any offense, not capital, except as provided in section 1046, unless the indictment is found, or the information is instituted, within three years next after such offense shall have been committed. * * *'
The defendants insist that the foregoing provision applies. The government contends that the case is covered by the proviso:
'Provided, however, that in offenses involving the defrauding or attempts to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner, and now indictable under any existing statutes, the period of limitation shall be six years.'
And the proviso was made applicable to offenses theretofore committed and not already barred.
'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.'
Act July 5, 1884, c. 225, 23 Stat. 122 (Comp. St. § 1711), provides:
'That no person shall be prosecuted, * * * 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, in all cases where the penalty prescribed may be imprisonment in the penitentiary and within two years in all other cases. * * *'
This act was amended by section 1321 of the Revenue Act of 1921, approved November 23, 1921 (42 Stat. 315, c. 136 (Comp. St. § 1711)), which eliminated the two-year period so as to make the three-year period apply to all offenses. And it was further amended by section 1010(a) of the Revenue Act of 1924, approved June 2, 1924 (43 Stat. 341, c. 234 (Comp. St. § 1711)), which added the same proviso that was added to section 1044. This latest amendment, passed after the offense here charged applied the six-year period to offenses thereafter committed against the internal revenue laws and covered by the proviso.
The offense charged is a conspiracy and not one arising under the internal revenue laws; and it is not within the Act of July 5, 1884, as amended. The period applicable is either three years under section 1044 or six years under the proviso. The government argues that defrauding the United States is an ingredient of the crime charged, and that the six-year period applies. It relies on United States v. Noveck, 271 U.S. 201, 46 S.C.t. 476, 70 L. Ed. 904. But that case is not like this one. The question there involved was whether an allegation in an indictment for perjury (section 125, Criminal Code (Comp. St. § 10295)), that the crime was committed for the 'purpose of defrauding the United States,' took the case out of the general clause of section 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 no support for the government's contention here.
The proper application of the proviso is to be found upon 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 cases shown to be clearly within its purpose. United States v. Dickson, 15 Pet. 141, 165, 10 L. Ed. 689; Ryan v. Carter, 93 U.S. 78, 83, 23 L. Ed. 807.
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. 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. All the various offenses under the internal revenue laws are excepted from section 1044. The proviso relates to the preceding part of the section and can have no broader scope. Wayman v. Southard, 10 Wheat, 1, 30, 6 L. Ed. 253. And legislation contemporaneous with and subsequent to its passage shows that Congress intended that the proviso should not include such offenses. The proviso and section 1321 were considered by Congress at the same time. The latter was enacted six days after the proviso; it relates exclusively to offenses under the 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 section 1010(a) which prescribes for them the same limitations as are fixed by the proviso, was unnecessary if the proviso already applied.
The three-year period fixed by section 1044 is applicable, and defendants' pleas were rightly sustained.
Judgment affirmed.

## Notes

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