Francis McLain v. United States

I. Can a district court properly deny a motion under Rule 60(b)(4), F.R.Civ.P., to vacate a criminal conviction where the motion shows the conviction is void for failure of the indictment to allege all the component essential elements of the offense, and/or void for the failure to instruct the jury on all the component essential elements of the crime charged? II. Can a district court’s finding of “arguable-basis” jurisdiction overcome a Rule 60(b)(4) Motion showing that a criminal judgment under 26 U.S.C. § 6672 is void for lack of in personam or subject-matter jurisdiction? III. Can the United States pursue a civil action to recover “trust fund recovery penalties” under 26 U.S.C. § 6672 that arose from a criminal conviction where the sentencing court found no actual tax loss and awarded no restitution under 26 U.S.C. § 7202? IV. Does the Constitutional bar against double jeopardy preclude the United States from pursuing a trust fund recovery penalty under 26 U.S.C. § 6672 if the same actions were already punished under 26 U.S.C. § 7202 and there is no showing that the civil penalty is remedial? V. Does the five-year statute of limitations under 28 U.S.C. § 2462 bar the United States from pursuing a trust fund recovery penalty under 26 U.S.C. § 6672 if the alleged trust fund violations accrued over nine years earlier?