Morris A. Shenker: -- of limitations and so forth as the year 19 -- the evasion that is charged on count one for the year 1956. However, the Government in order to attempt to toll the running of the statute had issued a complaint and filed a complaint before the United States Commissioner on April the 15th, 1963.
Speaker: Second counts are not affected.
Morris A. Shenker: The second and third counts Your Honor are not affected because they were dismissed. The only count that we are concerned with here is the first count which is of 1956. After the complaint -- the indictment was filed, appropriate motions were filed wherein we sought to have the count one dismissed. The other motions that we filed today are the counts of course are not applicable and we sought count one dismissed on the ground that it was brought by the statute of limitations. The contention was by the Government that the filing of the complaint tolled the statute of limitations under Section 6531. After the motions were overruled they then filed a -- an amended motion when the Greenberg case were decided in the Ninth Circuit and then it was overruled also so the defendant stand enter the plea of nolo contendere to count one of the indictment. On the plea of nolo contendere, the Court found the defendant guilty and assessed punishment of two years and to penitentially suspended 20 months after he would have served four months. The defendant is now out of -- the appellant is now out on -- on bail. The real question then that is before this Court is really there's only one question. Whether the complaint was sufficient, in other words, whether the complaint was sufficient and whether it was probable cause from which the United States Commissioner could file that the complaint was sufficient in order to toll the statute. Our position of course is that the complaint was not sufficient that it did not allege sufficient facts, that all it alleged were -- were many conclusions and that it was vague and definite and uncertain and alleged conclusions and all that -- and that it did not give any basis on which the United States Commissioner could make a finding of probable cause. And for that reason we contend that the complaint was not valid and therefore the statute of limitations barred the prosecution for 1956.
Hugo L. Black: Suppose the complaint have been definite.
Morris A. Shenker: I beg your pardon?
Hugo L. Black: If they had been definite.
Morris A. Shenker: If the complaint had been definite and the -- and the -- would have been -- and there would have been sufficient facts alleged from which a Commissioner could have found probable cause then under all the adjudicated cases, we would have to hope -- we would have to concede that the -- that the -- that the statute that was -- that the action was not outlawed and that the prosecution could proceed.
Hugo L. Black: Is the complaint there amendable?
Morris A. Shenker: I -- it is not amendable and in either event that wasn't amended. ANd that it is not amendable and the defendant was -- the appellant was not given a hearing which could become pertinent under question because under certain circumstances a complaint could be filed where a person is taken immediately before -- before a magistrate or the United States Commissioner and given a hearing and on those situations so there are all five that may well be that the complaint does not have to allege -- does not have to allege a probable cause because the Commissioner immediately makes the finding of probable cause. But that was not on in this case.
Hugo L. Black: (Inaudible) it seems to me your question is a little narrow than you stated in the beginning. I understood you to say that the only question was whether the filing of the complaint --
Morris A. Shenker: No.
Hugo L. Black: -- hold the limitations here.
Morris A. Shenker: No. Whether this complaint was -- whether this complaint was sufficient to toll the statute, my question is not --
Hugo L. Black: Do you think that is effective complaint?
Morris A. Shenker: That is correct. That is correct Your Honor. I'm sorry if I -- I didn't state that properly. Now the --
Earl Warren: Did you challenge that before -- before you pleaded a nolo contendere?
Morris A. Shenker: I beg your pardon, Your Honor?
Earl Warren: Did you challenge the sufficiency?
Morris A. Shenker: Yes sir. We challenge the sufficiency on two different occasions. We filed the motions and we had a hearing on the motion and the judge overruled us and thereafter before the trial the -- the Ninth Circuit rendered a decision of the Greenberg case holding a complaint of the exact nature -- or the exact complaint in every way if it's considered by the Government that's to same -- to same type of complaint. It's the form that the Government uses and they held that insufficient so we filed a motion for reconsideration and the judge overruled that motion. Then we sought a stay in the Eighth Circuit and the Court denied the stay and have to be pleaded nolo contendere of the appeal of the Eighth Circuit and we lost on the Eight Circuit and then we're up here because certiorari was granted.
Hugo L. Black: Was your plea based on that complaint?
Morris A. Shenker: That is correct. Our plea of nolo contendere was based to the indictment, to the count one of the indictment.
Hugo L. Black: It was not based on any complaint of indictment.
Morris A. Shenker: No sir. To the indictment and it was based to the indictment which was returned two months and a month and two days after the statute had run. Now, it is significant that I might point --
Tom C. Clark: Could the Government have not proceeded on the complaint itself without filing an indictment?
Morris A. Shenker: No. They could not because it was -- it's a felony and then lastly the defendant -- the appellant waived the presentment by indictment, they could not proceed. They would have had to present the matter to the grand jury. On misdemeanors of course they can but this was a felony.
Potter Stewart: There had been an information.
Morris A. Shenker: Well, if -- the information could not -- they could not receive unless the defendant agree --
Potter Stewart: Unless you waived it in (Voice Overlap).
Morris A. Shenker: Or unless you waived and if the appellant had waived and agreed to proceed that way they could have but it couldn't otherwise.
Earl Warren: Was he presented before the Commissioner?
Morris A. Shenker: There was no hearing before the Commissioner. So he would have been represented where the Government requested to continue and search and that request did no further action. In other words, the appellant never asked for a continuance or an extension before the Commission. The Government did that and because there was never any intent of course and they concede that. There was never any intent to hold the hearing that a complaint was filed primarily and specifically under Section 6531 which provides that upon the filing of a complaint that the statute is tolled for six -- for nine months. In other words if within nine months an indictment is returned then it can be considered that it is within time.
Earl Warren: You don't question the power of extending the statute of limitations in this manner under the Constitution, do you?
Morris A. Shenker: Well, it is not questioned in this -- this time.
Earl Warren: Yes.
Morris A. Shenker: That is not questioned in this case. Perhaps they should have or they didn't. They agreed to -- to narrow all issues down at the time actually when we entered a plea of nolo contendere. We advise the Court that the time we entered the plea of nolo contendere, and we thought that this is a broad count and that this is brought by the statute of limitations and it's in the record -- and that was all understood by the Government as well as by the Court that decided that the field would be taken to raise this point and to have this point adjudicated. Now, since the -- up until that time and during the trial and the argument of the -- the Eastern case in the Eight Circuit and then all the other cases even where they held against us -- against the appellants, the Government had always conceded and treated this matter as though the complaint had to state probable cause. They haven't stated facts for which the Commissioner could make a finding of probable cause. For the first time, after we filed our brief, after certiorari was granted and after we filed our brief, the Government raises the question and they contend that a complaint in this case, that the complaint under Section 6531 does not have to allege facts for which a finding of probable cause could be made by the Commissioner. This is the first time that this question that that approach was ever taken by the Justice Department. We have searched and we are familiar, I believe, of all the cases that were -- that were argued either appellant cases or District Court cases and we find no time, at no time was that position taken by the Government. Now, so therefore now in their brief they contend that that it's not necessary. That the complaint alleged facts from which the Commissioner has to make a finding of probable cause and on the basis of that issue is summon for a warrant. Now, we contend of course, that the Government is erroneous in that contention. We contend that a complaint could only mean that which has historically meant a cmplaint that the most allege facts so -- which are sufficient for which a finding of probable cause can be made and the Government in their own brief that was filed here on page 29, footnote 15, they alleged that the complaint was tailored, in other words, it's a form. And they said that the form was -- was corrected and so modified in order to comply with this Court's decision on the Giordenello case. In other words, so they admit even in their brief here that -- that the complaint was so modified. It's a form that they used. But the form was modified wherein the lightest personal knowledge of the agent. And that is set out in there. We say --
Potter Stewart: Your contention is that the complaint has to show probable cause, a probable cause for what?
Morris A. Shenker: Probable cause that an offense was committed and that the defendant is probably the person that committed the offense. And in other words --
Potter Stewart: Probable cause to support an arrest under the Fourth Amendment?
Morris A. Shenker: That is correct. Yes sir.
Potter Stewart: Not a search, we're not talking about a search.
Morris A. Shenker: We're not talking about a search, no. Probable cause under the Fourth Amendment, that is correct -- upon the Rules 3 and 4 of the Federal Rules of Criminal Procedure.
Potter Stewart: To support an arrest of the defendant person.
Morris A. Shenker: That's right. And I might while you're covering this if I may to just point out that even though they don't necessarily proceed with an arrest, they proceed with the summons. The fact that they raise that a summon has the same effect of an arrest because it doesn't comply with -- it comes in with the summons.In this instance they asked that the summons be issued and --
Speaker: Suppose the Government did not ask for a summons.
Morris A. Shenker: I don't think it would make any difference. I think that we have to look at it on what that Congress intend to do. That's really the real question. How could we concede that Congress intended to -- if they just wanted to extend the statute of limitations without a showing of probable cause at all that all they would have done is given the Justice Department an additional nine months within which to file -- within which to file a proceeding. Now, they didn't do that. They said that the statute can be tolled for nine months only if a complaint is filed. Now, you have to take the word complaint at its historical sense and in the sense in which it is interpreted in the light of Rules 3 and 4 of the federal rules. And when you take that and a complaint means that there must be sufficient facts alleged on which probable cause can be found. If not why a Commissioner -- why a United States Commissioner at all? Is he just going to be a rubber stamp or is he going to perform the duties that this Court laid down in the Giordenello case as to what a Commissioner or a magistrate has to do in order -- in order to make a finding before they can issue a warrant for the arrest or a summons. Now, we contend further that the Government states here that the reason for the extra nine months is not to give them a chance to make further investigations but because income tax cases are complicated and that often the Government, the defendant wants conferences before the Justice Department and -- or deprived to the Justice Department before the chief counsel of the bureau and the appellant's actions therefore they -- additional and sometimes the jury is not in session and therefore additional time is given to Government within which to com -- within which to process their case in order to give them a chance. But they do not at anytime contend that the additional time was given in order to make further investigations. Now, if that is so, how could the Government be heard? Why -- then there was a real intent and purpose than it was hat they should have their case ready and they should be able to allege sufficient facts from which probable cause could be -- could be determined. The Government further contends in their -- in their brief that well after all you treat a tax case different than you treat any other case because in a tax case the agent themselves first makes the investigation then he writes a report and this is all extraneous by the way. But that's not -- but they'd still perfectly wanted to argue that point because there it is in their brief that the agent makes a report to the -- to his superior and the superior makes a report to the chief counsel and the chief counsel to the Justice Department and the Justice Department passes on it then send it to the United States District Judge Attorney, the United States Attorney then the United States Attorney presents it to the -- presents it to the grand jury for indictment. All that that be that as it may. The fact still remains. If Congress wanted, the Justice Department to make a determination all they could have said that the Justice Department by a letter by any other indication could say, we want an additional nine months. Or that they're taking additional nine months. The fact remains that Congress did not do so. That Congress provided that the only way you could toll the running of the statute is by filing a complaint with the Commissioner and having said so, a complaint has its historic meaning and it must be interpreted within the rules of three and four of the Federal Rules of Criminal Procedure and you must show probable cause. Now, the question then would also be this if -- if it was done -- if it was done any other way then there would be really no useless purpose and nothing would be performed by the Commissioner. And there would even be a question how he could issue a summons which he did in this case. Now, what basis would he issue a summons if he could not make a finding of probable cause? The fact remains that all the adjudicated cases and all the treatment by the Justice Department considered that there must be a probable cause. Now, we contend that this -- this affidavit is just a form of affidavit. This complaint rather which is I gather with an affidavit is a -- is a form which was used and is used in every case. And it is filled in. And if you -- if you take -- if you examine, it is it fielded all of the information that it contains as far as filling in by the agent. The blanks that were filled in were gotten or could have been gotten from the tax return of the appellant that cites one figure and that one figure is the amount of the income he should have reported. And it is well to keep in mind that the amount of the income that a person should have been reported that it is alleged in an indictment is not binding on the Government at all. In other words, it's not well-established, that the Government does not have to prove in an income tax case the exact amount of the charge of the deficiency. They do not have to or they are not bound by their allegation or contention of the indictment. All they have to show is a substantial understatement. So really that figure could be any figure because it does not need any facts to substantiate it. And that really what the complaint shows that there are no facts alleged at all. Not a single fact is alleged in there to show as to what the -- what the -- what the -- on which the Commissioner could make a finding.
Earl Warren: Under the -- under the statute, could the Commissioner have issued a warrant of arrest here?
Morris A. Shenker: Yes sir.
Earl Warren: He could?
Morris A. Shenker: Yes sir. And it did so issue a summons here (Voice Overlap) because the statute permits the U.S. attorney to -- that their warrant shall be issued or that the request of the United States Attorney a summons shall issue. And at this instance the summons was issued and it was served by the United States martial on the 15th day of April 1963, the same day that a complaint was filed.
Speaker: Do you find that there's something wrong in the Government's use of form etcetera having a typewritten notice charge?
Morris A. Shenker: Well, I would say this. It would be perhaps there would be a way to -- to conceive of a form that would fit all purposes whether if you use a form, whether a person the agent that makes the complaint, that files the complaint must make those allegations on personal knowledge on something that he did and then frankly it is difficult to conceive a form. For instance if here the form says that he talked -- he talked to people that had business with the appellant that he examined books and records of businesses of the appellant, that he examined public records and private records. But they're silent completely to say where he sold those records, what the records say, what facts were contained in those records. What basis he is using for to conceive that the records are fraudulent than they are. There isn't one that had filled us out on that. So when I say the use of a form, in itself there is nothing wrong if the form can fit. But here an agent is just signing a form, and it was quite obvious from the time that we examined them at the -- in support of the motion that he hardly read the form.
Hugo L. Black: There was a summons that you gave, wasn't there?
Morris A. Shenker: Yes sir. Yes Your Honor.
Hugo L. Black: And it was sent at a certain date --
Morris A. Shenker: That is correct.
Hugo L. Black: -- for preliminary hearing.
Morris A. Shenker: Yes sir.
Hugo L. Black: And was the defendant there that day?
Morris A. Shenker: The Government -- he has written a letter which is in the record. He has written a letter that the hearing was continued on the request of the United States Attorney.
Hugo L. Black: Did he object?
Morris A. Shenker: Well, I don't know whether he objected or not but it was continued anyway.
Hugo L. Black: Well he -- did he -- what happened there?
Morris A. Shenker: And then it was continued again at the request of the United States Attorney.
Hugo L. Black: Did he object to that?
Morris A. Shenker: I understand that he did request for a hearing, yes sir.
Hugo L. Black: He did request for a hearing?
Morris A. Shenker: Yes sir, yes sir.
Hugo L. Black: Did he object to this affidavit?
Morris A. Shenker: Well, a -- he never saw the affidavit. The first time he attacked the affidavit was because within -- within four weeks and two days, he was indicted and of course he immediately, within due time, filed motions to dismiss.
Hugo L. Black: Why do you say, it may be right but I didn't think that preliminary investigation of that time that it was impossible for the Commission if they allow an amendment to complaint preliminary which decides nothing except whether a man could be bound the witness against him.
Morris A. Shenker: It is my opinion and I'll have to confess I didn't direct myself to that point exactly. But it is my opinion that you cannot amend a complaint if -- abinitio. It did not alleged sufficient facts when it deals with tolling the statute just like you cannot have an indictment that is deficient and doesn't state a cause of action.
Hugo L. Black: Suppose it didn't deal with the tolling of the statute.
Morris A. Shenker: Well, if they didn't deal --
Hugo L. Black: So therein, I thought those were very informal proceedings, those who are advocated and you just suspect it here before the justices here whether a man could be bound notice and that the judge and the administrators, justices of peace or the Commissioner could gain all evidence. If he thinks it's necessary, I hope he could get an amendment.
Morris A. Shenker: I would assume that -- I would assume that it could have been amended if it was within the statutory period because all the effect would be is this filing a new complaint. But I don't think you could amend that --
Hugo L. Black: It wasn't -- it was within the statutory period.
Morris A. Shenker: No. No because the statute rolled the day they filed it.
Hugo L. Black: Was it in six years?
Morris A. Shenker: Six years, yes sir.
Hugo L. Black: It was within six years.
Morris A. Shenker: The original.
Hugo L. Black: That's right.
Morris A. Shenker: The original.
Hugo L. Black: The original.
Morris A. Shenker: That's right.
Hugo L. Black: That's right.
Morris A. Shenker: But the day after it was too late.
Hugo L. Black: But the Congress said that if it was filed within nine months after its -- the limits within that period that they had to be given ten months --
Morris A. Shenker: Nine months.
Hugo L. Black: -- extension.
Morris A. Shenker: No sir, nine months.
Hugo L. Black: And the other filing of complaints.
Morris A. Shenker: What we said --
Hugo L. Black: -- for preliminary hearing.
Morris A. Shenker: That's right. But we say that the filing of a complaint, that a complaint must have some substance to it and not merely be a piece of paper.
Hugo L. Black: I just read it and it seems to me and I gather that there indeed was substance. It might not have been just the whole of the matter.
Morris A. Shenker: Well, --
Hugo L. Black: It's not a violation of law.
Morris A. Shenker: All the complaint really said and it's the same complaint that the Ninth Circuit had in the Greenberg case where it held -- where it held in the Greenberg case that it was not sufficient. All it pleaded was conclusions. It gave no facts. In other words, we think --
Hugo L. Black: They have (Inaudible) that they -- that require the same burden of proof showing in an affidavit for a complaint. That he was required to file amendment before a jury.
Morris A. Shenker: No, no, no. No. I would say this that what you need is enough facts alleged from which a United States Commissioner can lead the complaint and make a -- an affirmative finding of probable cause because he has to make that finding because the Commissioner's action is reviewable. Now, if he cannot, by leaving the complaint if it doesn't alleged any facts and you will read that complaint carefully, you will find it does not allege a single fact. All it alleges is if he looks on books and records.
Hugo L. Black: Do you mean it doesn't go into detail on when he took the money or how he did it.
Morris A. Shenker: No, he doesn't even say he took the money. It doesn't even say that just using as an example. He doesn't say that the book showed -- the book showed that he -- that he recorded $30.00 but it took in $230.00. He doesn't give a single fact, not one fact is given in this and that it gives generalities, it says he looks at that books or records that he talk with people. He doesn't say what the people said, he doesn't say who they work, he doesn't makes one accusatory statement except that he himself says that it was personal knowledge or personal belief that there was a violation and there was a false return filed. That's the significant part of it.
Earl Warren: It said -- it alleges that there are some familiar people in investigation.
Morris A. Shenker: Or does he say who we talked with even one, does he say what they -- what they have said?
Earl Warren: Do you think anything has been said in the complaints before us.
Morris A. Shenker: Well he's got to say something if not -- if not it's a man looking in his own pocket and say “I got such and such”, where the Commissioner can't say that it's in there. We don't know who he talked to. He don't -- now how can the Commissioner say from that whether he -- whether the agent drew the proper conclusion. He can't say it because he doesn't say what the facts were. If there were any facts, if they're given, I don't say I have to give all the facts. If they've given any facts at all whether they gave no facts at all in this instance, and by the failure to give the facts, by a failure to give any facts at all, the Commissioner cannot make a finding.
Hugo L. Black: But he could search the books.
Morris A. Shenker: That's right. But he doesn't say whether books were deficient.
Hugo L. Black: He said he talks to people with (Inaudible)
Morris A. Shenker: Right. But it doesn't say what any of them said.
Hugo L. Black: Do you think he ought to give their names?
Morris A. Shenker: Well, he did that or at least say -- I -- I would even buy this. If he would have said, if he would have said, Your Honor, that he would have said, now so and so said that he told me to give me cash, or -- or not naming the name who say that they told me to give him cash that he or that he would make no record. Any kind of a thing to make some factual determination, I mean from which a Commissioner can say “Well this looks to me that there's probable cause,” there he gave nothing.
Tom C. Clark: What he said was that it's just an investigation and that has been personal knowledge in what he thinks there's --
Morris A. Shenker: Alright, now --
Tom C. Clark: -- a certain amount of money down, do I understand?I remember they're going to (Voice Overlap).
Morris A. Shenker: That -- that's right he did. Now but when he says in the first place the mere understatement of income is not an offense. They're mostly out of factors as the Court well knows in order to show fraud. You're better familiar with those cases than I. And the fact still remains that there isn't any allegation. He just makes that naked statement based on nothing. Now, what has the Commissioner supposed to do? He might have just as well not said that he looked at the books, now that is because he doesn't give any facts.
Earl Warren: Mr. Lewin.
Nathan Lewin: Mr. Chief Justice, may it please the Court. Section 6531 of the Internal Revenue Code prescribes a six-year statute of limitations for the criminal offense of tax of willful tax evasion. But it authorizes an extension of that six-year period if, “A complaint it instituted before a Commissioner of the United States during the six years.” The only serious question before this Court now as petitioners conceded is, what the meaning of those words is notwithstanding references to the Fourth Amendment in petitioner's brief. There's obviously no constitutional issue here. Petitioner was not arrested. He was not subjected to a search. The only question here is where the petitioner's right of repose which was conferred by a statute as by Congress could -- could be interrupted by a complaint of the sort which was filed here. If for example, the statute rather than providing for a complaint to be filed, had just provided that the Commissioner of Internal Revenue send a letter to any taxpayer whose statute of limitations he would extend, that statute would clearly be constitutional and petitioners conceded as much here. The only basis for arguing that there's any requirement or probable cause or any requirement of convincing a Commissioner that there's probable cause to believe a perspective defendant guilty is that the statute has used the word “complaint” and that is if you talk about it in terms of its being instituted before a Commissioner.
Potter Stewart: Well now, don't you concede that this is -- covered by Rule 3?
Nathan Lewin: Yes, Justice Stewart.
Potter Stewart: The kind of a complaint covered by Rule 3?
Nathan Lewin: We concede that it's covered by Rule 3 but we think it's not covered by Rule 4 since there was no attempt made to arrest the petitioner in this case. They -- a summons was issued but the summons was nothing more than a notice to him in effect that the complaint had been filed.
Speaker: Well, what's the function Mr. Lewin on the idea?
Nathan Lewin: The Commissioner, Justice Harlan, I think in this case is there to take the oath or at least to receive the signed and sworn statement which formally accuses the defendant of a -- of a crime that formally institutes the proceeding if they were just the sworn affidavits sent to the defendant then there's no proceeding instituted in a Court. And we think the reason that Congress provided for a complaint before a Commissioner is that it wanted the Government to be put to the burden of filing a sworn accusation against the defendant before it would be entitled to extend the statutory period but nothing more than just an accusation under oath.
William O. Douglas: It's that -- the machine could have performed the same function.
Nathan Lewin: No Justice Douglas, I don't think a machine could have, because -- you mean it replace the Commissioner or that the --
William O. Douglas: Yes, replace the Commissioner.
Nathan Lewin: If a machine were an agency of a court, I would--
William O. Douglas: Yes.
Nathan Lewin: -- think it could, yes, if it were an arm of the Court. I think that --
William J. Brennan, Jr.: Suppose that the Congress had simply provided on the filing of the sworn affidavit period in the District Court would that have started a proceeding?
Nathan Lewin: I don't think that would have started a proceeding Justice Brennan and I think that's why the Congress made a complaint. Congress wanted the Government to know that it's instituting although not with all the publicity or notoriety or formal accusation of an indictment, it is instituting a criminal action against this man and it should do -- it should do so only if it has sufficient evidence then at its disposal to be able to proceed with a criminal action not merely to file an affidavit.
Earl Warren: Could he have been arrested -- could he have been arrested under this complaint?
Nathan Lewin: Mr. Chief Justice, alternatively in our brief, we argue that this complaint constituted probable cause in the Fourth Amendment sense.
Earl Warren: Well that isn't what I ask. I asked could he have been arrested instead of having a summons sent to him this case.
Nathan Lewin: I think that he could -- I think alternatively -- our alternative argument is that he could have been arrested.
Earl Warren: I'm not talking about your argument.
Nathan Lewin: Yes.
Earl Warren: I'm asking you as a matter of law he could have been arrested under this complaint rather than just as having a sent -- summon sent to him.
Nathan Lewin: I -- our first argument would be that he could not, Mr. Chief Justice. I think we would admit --
Earl Warren: What's your second?
Nathan Lewin: Our second is that he could. In other words --
Earl Warren: Well, then let's take -- take the one that he could.
Nathan Lewin: Yes.
Earl Warren: If he could be -- could be arrested and would the complaint have to be sufficient to -- to sustain a warrant of arrest?
Nathan Lewin: Yes. I think under our second argument, it would have to be sufficient.
Earl Warren: Now, is this affidavit is sufficient to sustain a warrant of arrest?
Nathan Lewin: We argue alternatively that it is, Mr. Chief Justice. And I will -- I've reserved that for the very end of my argument if I have time. If not, we'll rest on our brief. I would --
Earl Warren: Well, I would like to know it now, if you don't mind.
Nathan Lewin: Yes sir. I -- I think -- I think it is sufficient. We ague that it's sufficient because the agent has said that he has looked at particular books and records, interviewed people and that he concluded at his own personal knowledge that there is probable cause to believe that this petitioner committed the offense.
Earl Warren: Have you cited the cases in your -- in your brief to show that this is adequate for -- to sustain an arrest?
Nathan Lewin: There is no case of -- no case decided by this Court, Mr. Chief Justice that would -- that would sustain.
Earl Warren: Are there in any other courts?
Nathan Lewin: The only decisions of other courts have been those involving the identical kind of complaint, in other words a complaint under Section 6531. And they have said that this is sufficient to sustain an arrest or all the proceedings under Rule 4. Those are cases like Sanseverino which was recently decided by the Ten -- Tenth Circuit.
Earl Warren: I've got one more question and I -- I won't bother you anymore. But do you think that it's within the discretion of the -- of the United States Attorney to either send him a summons or have him arrested in determining whether this complaint is sufficient?
Nathan Lewin: I think under -- again I'm afraid I'll have to distinguish between our -- our personal alternative arguments that I'm -- I think that the United States Attorney on our first argument would not be able to have him arrested Mr. Chief Justice. Under our second, I think he could ask for a warrant of arrest and Rule 4 provides.
Earl Warren: Well that if he -- if he could have then do you think the question of the validity of this -- this complaint should depend upon the discretion of the United States Attorney as to whether the man should be arrested or should be summoned.
Nathan Lewin: By no means, Mr. Chief Justice, it should have.
Earl Warren: What is to determine then?
Nathan Lewin: What is to determine is the phrase of the complaint and what it states and what the Commissioner could conclude on the basis of the evidence before him which --
Earl Warren: And that -- that means the validity of the affidavit.
Nathan Lewin: Absolutely.
Arthur J. Goldberg: Mr. Lewin, do you think the Commissioner could dismiss the complaint under Rule 3 if he doesn't state the essential facts constituting an offense charged?
Nathan Lewin: I think he could.
Arthur J. Goldberg: So the Commissioner therefore has more than a machine function to perform, is that correct?
Nathan Lewin: To that extent, yes Mr. Justice Goldberg.
Arthur J. Goldberg: So that this paper that is to be filed and you say must meet the requirements of Rule 3, in any event, is that correct?
Nathan Lewin: That's right.
Arthur J. Goldberg: And that -- that's your first phase of the argument? It was not just to keep notice, not just a statement that the Government wants the statute and limitations extended. The Government is required it under the Act of Congress to file a complaint. The complaint under Rule 3 is required to be in a written statement of the essential facts constituted with the offense charged.
Nathan Lewin: That's right.
Arthur J. Goldberg: You say, having met that test that's all it's required.
Nathan Lewin: Exactly sir.
Speaker: On that theory, the main function of the Commissioner were that of our public so that --
Nathan Lewin: Well, I -- I believe he does have the additional function that Justice Goldberg just referred to, to look at the phase of the complaint and see whether it does state an offense. The Government couldn't extend the statute of limitations simply by a paper which didn't accuse anybody of anything.
Speaker: Or just by saying we want to prosecute.
Nathan Lewin: That's right.
William J. Brennan, Jr.: Well, I gather this mean for use to -- we must examine the complaint too whether it is “a written statement of the essential facts constituting the offense charged”. This is under your first argument.
Nathan Lewin: That's right.
William J. Brennan, Jr.: And that -- and if it was not so, he can refuse to accept it, is that it?
Nathan Lewin: Yes.
William J. Brennan, Jr.: Or refuse to -- to notarize or whatever that says.Is that it?
Nathan Lewin: Yes. Yes sir.
William J. Brennan, Jr.: So that's an -- it gets down to the distinction between a written statement of the offense of facts constituted on the offense charged and the requirements of Rule 4, is that it?
Nathan Lewin: That's exactly what the case comes down to. Petitioner contends that what has to be -- what has to be meant in this case are all the requirements of Rule 4 and all the requirements that would have to be meant by a complaint in order to support a warrant of arrest. We say that all that the complaint has to state is what Rule 3 provides for it which by the way Rule 3 is framed in almost identical language to -- to that in Rule 7 which covers indictments. And our contention is that all that's required of a complaint is that the accusation of a particular individual with the kind of specificity that would be required of an indictment or an information.
Potter Stewart: The federal language of Rule 3 doesn't -- the basic difference as I see between Rule 3 and Rule 4 is that Rule 3 doesn't have to tie it up to any particular defendant. Rule 4 does. Rule 3 just says that an offense has been committed, the essential facts that an offense has been committed. And I suppose under its literal language we can -- a complaint can say, we don't know who has committed it although we -- so we name John Doe and Richard Roe and so on. And Rule 3 brings it down to a specific person or persons on Rule 4.
Nathan Lewin: Well to the extent that rule --
Potter Stewart: There's a basic difference, isn't it?
Nathan Lewin: To the extent that Rule 3 could be read that way, Mr. Justice Stewart, we wouldn't read it that way from purposes of this complaint. Now, we would say that one of the essential facts that would have to be charged for purposes of this kind of a complaint would be that this particular dependant had committed the offense.
Potter Stewart: Well, in that case what's the difference between 3 and 4?
Nathan Lewin: Well because 4 just provides for the next step that a Commissioner has to take if he is to issue a warrant of arrest or a summons which will compel a defendant to appear before it.
Potter Stewart: Well then, do I understand you to just please telling us that a complaint under Rule 3 need not show probable cause to believe that an offense has been committed and that the particular person has committed it?
Nathan Lewin: That's right.
Potter Stewart: Now, what need -- what -- should it show what need?
Nathan Lewin: It should show -- it should show what an indictment shows which is including the names of the defendant that a particular defendant committed an offense in a particular manner. The accusation that he's committed the offense and of course it must be under oath. Now, we think that's the additional protection that Congress meant to afford to taxpayers in this kind of case.
William J. Brennan, Jr.: Well, I gather Mr. Lewin under the -- all it really need on your view, am I right, is what appears in the last eight to ten lines of the complaint? Everything that preceded it was unnecessary.
Nathan Lewin: For the -- I think technically under Rule 3 that would be all that would be required. I think for the protection of -- of taxpayers and generally in order to implement the purpose behind the statute, the Government has drafted this form to indicate under oath that there has been a conscientious investigation performed under the supervision or to the knowledge of the affiant.
William J. Brennan, Jr.: But the Government's position is that Rule 3 does not require that much.
Nathan Lewin: Rule 3 does not require but we think for purposes -- we're willing to concede that for purposes of Section 6531 that should be in an affidavit and I -- I'd like to get to that if I could.
William J. Brennan, Jr.: Well not --
Byron R. White: Well Mr. Lewin, up until now the Government has always thought the -- had never taken this position before, have it? Haven't they always thought that the complaint should always show probable cause?
Nathan Lewin: We've taken that position I've been told in a few district courts but --
Byron R. White: Have you ever taken this position you're taking here before in any District Court?
Nathan Lewin: I'm told that we've taken this -- that we have taken this position but it need not show probable cause.
Byron R. White: But certainly your form has been drafted on the assumption you had to show probable cause.
Nathan Lewin: Yes, it has.
Byron R. White: Up until now.
Nathan Lewin: Yes, up until now. But I think --
Byron R. White: The Ninth -- and the Ninth Circuit has decided against you on this issue on -- on sufficiency of this affidavit to show probable cause.
Nathan Lewin: Yes. The Ninth Circuit has decided.
Speaker: I gather you say (Inaudible)
Nathan Lewin: Well, I'm hoping to save time for that Mr. Justice Harlan but I -- I was hoping to make clear at the outset although I'm far from the outset at this point that the Government is not seeking to use and has never sought to use this statute to extend the limitations period in order to conduct an investigation when it doesn't have evidence of the conclusion of the six-year period. In other words, our interest is not to vindicate any right just to file a complaint and then go out and investigate to gather the evidence to support that complaint. We set out at pages 11 to 13 of our brief the extensive review and rereview that these kinds of cases go through in the Internal Revenue Service itself and in the Department of Justice before the decision to file a complaint is made. And there is invariably more than sufficient evidence at that stage in the Government's files to establish probable cause.Petitioner asks then why the Government cannot show probable cause in its complaint. And I think the answer isquite simple. The reason that we're objecting to any rule which would require us to set out probable cause in the complaint for the satisfaction of a Commissioner is due to the serious harm that this would do in a variety of ways to the administration of the Internal Revenue laws in its criminal aspects.
William J. Brennan, Jr.: Offhand Mr. Lewin, do you know of any other situations where the Government might make this claim that in other words that the complaint short of one would show its probable cause and filed before a Commissioner?
Nathan Lewin: No Mr. Justice Brennan. This statute is unique in our -- insofar as we know and we --
Earl Warren: But we don't think it would -- it would cause so much harm to the administration of tax laws. Why wasn't that idea conceived before this? Why is -- why have you taken the other position through the years than the Court had it just now take in this position?
Nathan Lewin: I think the reason is that very possibly that until Giordenello it was believed by the government agents, the Internal Revenue Service and the Department of Justice that any affidavit filed by an Internal Revenue agent stating that of his personal knowledge he knew that a person who have committed an offense would be sufficient to satisfy the Fourth Amendment. After Giordenello, certain other particulars were put into this complaint. And at -- at this stage there is honestly, Mr. Chief Justice, some doubts to whether it would satisfy the Fourth Amendment requirement after this Court's decision in Aguilar. On reexamining the whole problem, we've concluded that there really should be no need to -- to state probable cause at all in the complaint because the Congress just didn't intend it and because we think it would -- a requirement that the Commissioner examined this would have a damaging effect. If I can just go at, go in detail to this, I'll attempt to do so.
Hugo L. Black: They have a damaging effect on what?
Nathan Lewin: Well, this goes back to your question during petitioner's argument, Mr. Justice Black. You asked whether a complaint can be amended. In effect, this complaint is a one shot affair. It's filed by the Government one, two, three days before the statute of limitations runs. The Government puts into it what it made if -- what it may believe to be probable cause. It has much more certainly because the case has been reviewed and rereviewed in the Department of Justice and in the Service. A Commissioner may mistakenly say, “Well, this is sufficient,” as the Commissioner did in this case.” And then if a court at a later date concludes that it's not then there's absolutely no way of repairing the damage that the injury done in the Government is far greater in this case than it is in a search and seizure or arrest case where the only things that are excluded are the fruit of any unconstitutional arrest or any unconstitutional search. Here we have a complaint as to -- as to a proceeding which doesn't involve in anyway, any questions of constitutional dimensions and nonetheless if as it turns out a Commissioner was wrong and the Government was wrong on the question of probable cause which this Court just last week in Ventresca said raised some difficult problems in particular cases then the defendant is entirely immune. His limitations period has expired and he can say, “Well no matter what other evidence you had back there, it's too late for you now to assert it in order to extend the statute. Your complaint didn't have it.” If we were required to show probable cause then, the only alternative left for the Government particularly considering the -- the peculiarity of a tax evasion case would be just to in effect bring out the entire agent's report and all the supporting evidence. The agent's report in this case had been referred to in the record and it comes to 61 pages in a 181 exhibits and many of those petitioners would contend are hearsay. So -- so we have to bring out affidavits of these -- these prospective witnesses.
Arthur J. Goldberg: (Inaudible)
Nathan Lewin: Mr. Justice Goldberg, I think in -- in tax evasion cases particularly in net worth prosecutions which come to 40% of the tax evasion cases, there would be great difficulty because the Government's entire case doesn't rest on any single thread or any single item which could be removed from the -- the full picture of the case. The Government's case essentially rests on a large volume of evidence which indicates increases in net worth over a course of years and the fact that these increases are unexplained. Now, unless the Government set out all the evidence for the beginning net worth or at starting net worth and everything that happened thereafter, I don't think that they really would be enough for a Commissioner to determine that there's probable cause to believe that a man committed the offense.
Arthur J. Goldberg: (Inaudible)
Nathan Lewin: That's true but --
Arthur J. Goldberg: (Inaudible) assuming that it's required in certain cases (Inaudible)
Nathan Lewin: It's not an onerous requirement in most of the cases. But I -- I believe that is an onerous requirement in -- in the tax field because taking Mr. Shenker's illustration the fact that somebody said or that the petitioner said to somebody, “Give me cash." Well that's not probable cause.I -- I think the petitioner would be up here arguing the very same claim he's making now if that were in this comp --
Arthur J. Goldberg: Well he did argue that he'd be rejected because he said (Inaudible) a hearsay wouldn't be accepted (Inaudible)
Nathan Lewin: Right. But this -- this you say, Justice Goldberg, just wouldn't go to the Commissioner of the offense. The fact that he's received cash wouldn't demonstrate that he has committed the offense of tax evasion. To turn now to Mr. Justice Harlan's question as to how this case is different from Girodenello and why the standard should be different, we believe it's important to consider what the interest of the taxpayer or of the defendant in this case is as compared with the interest of a defendant in a Giordenello type situation. Here, all that's involved is the right of repose which the Congress has granted by statute. And the question is essentially whether a taxpayer should be entitled or should be protected by some requirement that the Government set out evidence in a complaint against an extension of the right or against an extension of the period where he will not have repose. It certainly a far cry from the constitutionally protected rights of arrest or search which are involved in Fourth Amendment cases.
Potter Stewart: Mr. Lewin, I know we've fully interrupted you and I apologize for doing it. But you had -- you have told us that the complaint mentioned in Section 6531 is -- is the kind of a complaint embodied and referred to in Rule 3.
Nathan Lewin: Yes.
Potter Stewart: Oh, I think I understand you told us that. Well now, under Rule 3 a complaint has to show probable cause in order to have any effectiveness at all in order for anything to happen under Rule 4, isn't that correct?
Nathan Lewin: Yes.
Potter Stewart: You can't just file a lottery ticket under Rule 3.
Nathan Lewin: No, but -- but we think --
Potter Stewart: Then if you file anything short of showing probable cause then nothing can happen. That complaint is ineffective to have any operation under Rule 4 because Rule 4 is what's -- provides for an arrest or a summons, isn't that correct?
Nathan Lewin: We think what can happen though Mr. Justice --
Potter Stewart: So doesn't Rule 4 measures what a complaint has to show under Rule 3?
Nathan Lewin: Well, if that were true, Mr. Justice Stewart, I think Rule 3 would say that a complaint has to have probable cause.
Potter Stewart: Well, if there are complaints without probable cause, what happens? What good is it?
Nathan Lewin: It at least has -- if our contentions accepted it at least has the good of extending the statute of limitation and --
Potter Stewart: Under this particular statute?
Nathan Lewin: Under this particular statute. It's an institution. It begins a proceeding. And --
Arthur J. Goldberg: (Voice Overlap)
Potter Stewart: I don't know that.
Arthur J. Goldberg: (Inaudible)
Nathan Lewin: Yes, I agree with that.
Arthur J. Goldberg: (Inaudible)
Nathan Lewin: A summons is I think one method of giving a notice but I think the Commissioner could just send in notice in any other fashion and he would still be satisfying Section 6531.
Arthur J. Goldberg: (Inaudible)
Nathan Lewin: Or the Government would serve notice of -- of this complaint defined. Now, the diff --
Arthur J. Goldberg: (Inaudible)
Nathan Lewin: We're writing it out for purposes of this statute because we just don't think it apply to this statute although Congress used the word “complaint”, we don't believe that Congress meant to carry with it the entire machinery of -- of investigations for probable cause and searches for that with the probable cause.
Hugo L. Black: Well, isn't it becoming very common in many places now, considered a great reform to do away with arresting people and notifying be it somewhere at a certain time? I thought that was a -- one of the modern ideas of improving our system.
Nathan Lewin: Well if it is, and I really hadn't heard of that, Mr. Justice Black. But if it is then I think that -- that applies here as well. We're not arresting anybody. We're just notifying him that the statute of limitations is extended for nine months. And --
Byron R. White: What is the determination that he would not be arrested?
Nathan Lewin: I think both. I think the Commissioner would make the determination as well as the United Stated Attorney --
Hugo L. Black: Who did make it here?
Nathan Lewin: The United States Attorney made it here. He never asked for an arrest warrant issue. And Rule 4 provides that it's only -- well, it would be on the request of United Stated Attorney that an arrest warrant would issue.
William J. Brennan, Jr.: He admitted though --
Nathan Lewin: Unless the --
William J. Brennan, Jr.: Do you say he made a request -- the Commissioner questions (Inaudible) Is that what leaves him to do this?
Nathan Lewin: If the complaint states.
William J. Brennan, Jr.: Does common sense says the word shall.
Nathan Lewin: Yes Mr. Justice Brennan.
William J. Brennan, Jr.: And (Inaudible) for future argument.
Nathan Lewin: That's right.
William J. Brennan, Jr.: Any other form of notice would be (Inaudible)
Nathan Lewin: That's right. Insofar as the -- the protection or the right of the defendant is asserting here, I -- I think it's of quite a parallel to this -- to this Court's recent decision in the Powell and Ryan cases in the area of administrative subpoenas by Internal Revenue agents. In that case, this Court held that despite a statute stating that there could be no unnecessary examination of a taxpayer's records unless of course it's the civil analogue of this kind of criminal provision, nonetheless, no notion of probable cause or anything like it would apply to -- before an administrative subpoena before a taxpayer's records could be issued. Essentially what the Government is urging is that all that we need to show in the complaint then is that for purposes of Section 6531 is that there's been a conscientious investigation and that the person conducting that investigation believes under oath that the defendant is guilty. The conscientious investigation part although not required by Rule 3 we think is -- in its protection to defendant so that the ordinary government policy which is not to file these complaints unless we have had a conscientious investigation and unless it is believed that there is enough -- enough to go to a grand jury and to convict the defendants will apply in every particular case.
Potter Stewart: You find that a requirement?
Nathan Lewin: Well, it's not a requirement but that's -- that's -- that's the way we -- we've set this procedure up administratively.
Potter Stewart: But if you're right, if you're right, there's no such requirement as that.
Nathan Lewin: There is no requirement such as that --
Potter Stewart: Does that say John Smith, I believe John Smith violated the -- evaded his taxes fraudulently.
Nathan Lewin: There is no such as that. There is no such requirement in the rule specifically in the statute.
Potter Stewart: If you're right there is no such requirement at all?
Nathan Lewin: But we think that to the extent that this -- that this Court would go beyond Rule 3 to protect the defendant in this kind of situation against a whimsical or capricious extension when the Government has no evidence, we think it's adequately protected when you require that kind of a paper to be filed.
Potter Stewart: Well who -- where does this requirement come from -- either there's a Fourth Amendment requirement or a Rule 4 requirement or there is no requirement at all if you're right. We just get this requirement if you think it's a nice thing to do or what?
Nathan Lewin: We get this requirement not out of -- not out of the statute but just simply to protect defendants. I -- I agree that there's nothing in the statute requirements Mr. Justice Stewart. In conclu --
Earl Warren: What -- what then does it require to just get right down if you say that doesn't -- isn't required just how little or much you say in order to satisfy this statute.
Nathan Lewin: We must accuse the defendant under oath in a -- of having committed the offense in a specific year and in a specific manner. In other words, the kind of requirement that's required by -- of an indictment, it's the very same type of minimal provisions that would be required of an indictment or for that matter of -- of an information. This may very well have been Congress' method of saying, “Well, when you can't proceed by information because it's an indictable offense nonetheless when a grand jury is not in session and that was the original purpose of the statute, to cover the case when a grand jury and it was not in session, you may file the equivalent of -- of an information sort of just to extend the statute until you can get this case to a grand jury.
Hugo L. Black: Before you quit, would you -- do you know what the practice is with reference to amendments of both Commissioner and the charges.
Nathan Lewin: I don't know what the practice is, Mr. Justice Black. I'd suspect that if -- if the Government tried to amend the complaint which was filed on the day the statutes of limitations told and thereafter try to put in probable cause into the complaint, I would suspect that it'd be rejected because it would then become the complaint or the -- the effective portion of the complaint would then have been putting to the case after the -- after the statute of limitations had expired. So I think it would really be necessary for the Government to make -- take that one shot and get everything into that one complaint or else suffer the fact that the -- that the limitations period had expired.
Earl Warren: Very well. Mr. Shenker.
Morris A. Shenker: I only have I believe about one or two minutes that I may call the Court's attention just one -- this question about the allegation that it contains the formal charge the same as an indictment. I should like to point out that an indictment is returned after there is evidence heard by the grand jury. And the grand jury does have -- makes a finding of probable cause. So this is different than a complaint when it comes to a Commissioner on which he has nothing to base on. The second thing this I would point what they're -- what they're talking about that the protection that is given that a various care for the departments to review it, of course this is almost like saying that he is guilty because he is here. In other words the mere fact that a complaint has filed, you don't have to allege anything because if the Government says that he committed the offense, that's it. We submit that under the circumstances in there that it's just isn't anything in there on which to bottom this -- this indictment. I want to point out also that Rule 3 applied on that --
Speaker: Do you agree that as far as the affidavit is involved in the Giordenello affidavit, it may not be acknowledged?
Morris A. Shenker: Well I --
Speaker: You'd go that far wouldn't you?
Morris A. Shenker: I kind of think you --
Speaker: Or Aguilar?
Morris A. Shenker: I kind of think the Giordenello affidavit is stronger than this affidavit. Now, this is a matter of opinion and because I think here that's so vague and it talks about books. I'm talking about the person but not one single effect is -- is given on which it can be predicated. I do disagree with Mr. Lewin completely when he says that they would have to give the case away. And all that was noted that many cases the Government filed affidavit and just give a scintilla of the evidence and then when they come into trial, they have considerably more evidence and that's -- that that's the way it is. If they could just give enough evidence on which a Commissioner could make a finding. Now, Rule 3 provides that -- that it shall be made that the complaint shall be written and so forth and it should be made upon oath before the Commissioner or other officer empowered to commit persons charged of that offense against the United States and I would even then contemplate that this is a proceeding where either you have to read the conjunction of Rule 4 that you read an issue an order for the arrest, a warrant for the arrest and if it is a request to the United States Attorney it's a summons. And of course the summons, I do not distinguish between a summons or an arrest because you are under arrest. You're commanded to do something and if you don't obey it, then you're under arrest Thank you very much.
Earl Warren: Very well.