United States v. Michael P. Driscoll

In agreement with other circuits which have ruled upon the point, we hold the willful failure to file an income tax return as proscribed by 26 U.S.C. § 7203 (1976 & Supp. I 1977) is an offense for which the Government may proceed by information in lieu of grand jury indictment. United States v. Moss, 604 F.2d 569 (8th Cir. 1979); United States v. Kahl, 583 F.2d 1351 (5th Cir. 1978); United States v. Jordan, 508 F.2d 750 (7th Cir.), cert. denied, 423 U.S. 842 , 96 S.Ct. 76 , 46 L.Ed.2d 62 (1975).

There are at least two .reasons. First, the penalty for the offense is not more than one year, 26 U.S.C. § 7203 (1976 & Supp. I 1977). The length of penalty is now the most reliable index of whether a crime is infamous, as that term is used in the fifth amendment. See Fed.R.Crim.P. 7(a). The cases cited above relied upon this standard in concluding that the income tax penalty is not infamous. Related to the length of term is a second concept, which is that an infamous crime may result in confinement to a penitentiary. Mackin v. United States, 117 U.S. 348 , 6 S.Ct. 777 , 29 L.Ed. 909 (1886). Since a defendant sentenced to not more than one year of imprisonment may not be confined to a…