Before DUFFY, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.
This is a criminal prosecution for alleged wilful attempted evasion of income tax for the years 1948, 1949 and 1950. The District Court dismissed the indictment before trial. The government appealed such dismissal to this Court. The question presently before us is defendant's motion that the appeal should be certified to the Supreme Court of the United States.
Title 18 U.S.C. § 3731 provides:
"An appeal may be taken by and on behalf of the United States from the district courts to a court of appeals in all criminal cases, in the following instances:
"From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof except where a direct appeal to the Supreme Court of the United States is provided by this section."
Said section further provides:
"An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances: * * * From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy."
It is conceded that defendant herein has not been put in jeopardy. Whether we should certify the appeal to the Supreme Court of the United States depends upon whether the district court sustained "a motion in bar."
The order of the District Court was as follows:
"The defendant's motion of August 15, 1955, to dismiss the indictment upon the grounds that the initiation of a criminal prosecution for tax evasion during the pendency of a jeopardy assessment and accompanying liens deprives the defendant of liberty and property without due process of law, in violation of the Fifth Amendment to the United States Constitution, and to the effective assistance of counsel for his defense, in violation of the Sixth Amendment to the United States Constitution, be and it is hereby granted and the indictment be and it hereby is dismissed."
It will be noted from the wording of said order that the District Court recognized defendant's objection was to the initiation of a criminal prosecution "during the pendency of a jeopardy assessment." It was defendant's claim that as a result of the jeopardy assessment and tax liens he was without funds to defray the expenses of his defense and, in particular, to engage the services of an accountant to aid in meeting the government's proof as to net worth. The District Court held that the services of an accountant were essential to the effective assistance of counsel in this case.
Whether a plea is in abatement or in bar depends upon its content and effect. United States v. Hark, 320 U.S. 531, 64 S. Ct. 359, 88 L. Ed. 290; United States v. Murdock, 284 U.S. 141, 52 S. Ct. 63, 76 L. Ed. 210. A plea in abatement sets forth facts extrinsic to the merits which affect only the manner in which the action is framed or the circumstances under which it is sought to be prosecuted. It does not destroy the right of action but merely suspends or postpones its prosecution.
A plea in bar, on the other hand, sets forth matters which per se destroy the right of action and bars its prosecution absolutely, such as the bar of the statute of limitations. United States v. Goldman, et al., 277 U.S. 229, 48 S. Ct. 486, 72 L. Ed. 862, or the constitutional guarantee against ...