# Appendix — Schipani v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1755%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1966 - **Citation:** 385 U.S. 934 ## Text . oe Office-Suprame Court, us. | ren f ee: FILED. _ JOHN F. DAVIS, CLERK IN THE Supreme Court uf the United States OCTOBER TERM, 1966. 504 JOSEPH F. SCHIPANI, | Petitioner, —_—V.— ‘UNITED STATES OF AMERICA, - -Respondeit APPENDIX TO PETITION FOR A "WRIT OF CERTIORARI Jacos P. LerKowirz, | Attorney for Petitioner Joseph F. Schipani, - ‘ 150 Broadway, 3 New York, New York. Qi «32 Case Parss 1xc., 421 Hudson St.; N.¥.—ORegon 5-4540 INDEX Appeals sethuddenciwhurass coveve errr ere re A-1 Aprenpix B—Opinion by Rosling, US.DJ. . A-14 . Apprenpix C—Judgment of the United States Court sated eee ee ar aia ea seees A-108 ~ APPENDIX A Opinion of United States Court of Appeals | UNITED. STATES COURT OF APPEALS ao - For THE Srconp Circuit aby. Vv KJ . ! No. 382—September Term, 1965. | (Argued May 12,1966. Decided ’June 29, 1966.) Docket: No. 30256 tr ~ | -Unirep States or AmMERycA, . Appellee, vie ; =e ‘JoszPH F. Scurrani, Defendunt-Appellant. Before: WATERMAN, onme and A'NDERSON, ; Circuit anges dy vr Appeal from judgment of conviction in the United States | District Court for the Eastern District of New York, George Rosling, Judge, sitting without a jury, on five. counts of an indictment, each charging willful evasion of personal income taxes in violation of Title 26 U.S.C. §7201. ' Affirmed. - =. > ay Jerome C. Drrore, Assistant U. S. Attorney, Eastern District of New York (Joseph P. Hoey, U. S. Attorney, Eastern District of New York, on the brief), for Appellee. Jacos P. LerKxowirz, Esq., New York, Non Yaa. ‘ for Defendant-Appellant. . in wi oN on A2 , Axomioonl, Circuit J udge: The defendant- -appellant was stein on all five counts of an indictment charging him with violations ‘of Title 26 U. S. C. §7201' for willfully evading the payment of per- sonal income taxes due from him for the five calendar - years 1956 through 1960. He was fined $2500 and sentenced \. to three years imprisonment on each count, to be served con- currently, but with the proviso that he should not be re- leased from confinement until the fines had been fully paid. The case ‘was tried on the ‘‘net worth” theory, in support Agoendia A--Opinion o United States Court es Appeals of which the — offered evidence to prove that -“Schipani had a certain net worth at the beginning of 1956 and an increase in net worth at the end of that year and at the end of each succeeding calendar year during the in- -dictment period. The proof was entirely circumstantial because Schipani kept. ng records, did not file any income tax return at all for any of the years covered by the indict- ment, and did not furnish the Government with any leads _with regard to any cash reserve, income or expenses. An essential element of a case of this kind i is proof of the opening net worth of the accused as it was at the be- ginning of the indictment period. Holland v. United States, | 848 U. S. 121, 132 (1954). The Government offered as a basis or. starting point for this phase. of its case a state- ment made by the defendant in 1943 concerning his cash re- _* sources at that time, thirteen years before the indictment. | In that year Schipani had been convicted of an offense * and commenced serving one and a half years of a two year term of imprisonment. On February 10, 1943, in the course 1 Title 26 U. S.C. §7201, in pertinent part, reads as follows: “At person who willfully. attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be ony ; . of a felony . . A-3 | as _Appendia A-—Opinion of pastes States Court of Appeae a of a routine interrogation by the prison, authorities relat- ing to Sehipani’s personal history. and circumstances at + ‘the time he was admitted to the prison, he started that the © only cash he then had was $1350 which he had left with his wife. found, from evidence of Schipani’s financial dealings and affairs from that time to and including December 31, 1955,’ that Schipani had assets on January 1, 1956 of $18,908.89. and liabilities of $1300 from which it computed a net worth of $17, 608. 89 at the beginning of the indictment period. _ The trial court further found that, at the end of the calen- . ' dar year 1956, the defendant had an increase in «his net worth of $7,307.35, and in each of the four subsequent ~~ indictment years there was likewise an increase in the, de- = fendant’s net worth.? : Tlie findings state, anid the evidence aa showed, that fs the Government made an exhauStive investigation into vir- ' tually every possible source ‘of information concerning Schipani’s economic circumstances from January, 1943 through December, 1960. The leads obtained from checking is over one hundred central and ‘branch bank offices in areas ‘in which Schipani lived and which he frequented, finance _ Companies and credit bureaus, various insurance, retail and ’ brokerage firms, records of Kings County and the N ew York } Surrogate Courts and the Estate and Gift Tax Office of the United States were followed through by investigators. The Net Worth Previous Increase in The‘ trial court found this to be true; afd it also 7 39,245. 26 ~ Net Worth |. Year End Net Worth 12/31 /55 . $17,608.89 . ‘ 12/31/56 - 24,916.24 . $17,608.89 $7,307.35 12/31/57 28,933.05. 324,916.24 4,016.81 12/31/58 33,979.11 28,933.05 . 5,046.06 12/31/59 -_ "353. 20-.- ~=33; ‘979. 11 a "374. 19 * 12/31/60 38, 353.30 891 96 “= As Appendia A—Opinion of United States Court of Appeals Government also sought out and questioned friends and . relatives of the appellant for further leads, which were then .pursued. The information thus obtained furnished ‘the » proof presented in the Government’s case. The cash on hand at the end of one year and the beginning of the next, however, was only one of the items entering into the total of the assets at that time. The unadjusted ‘net worth was simply the result of subtracting the total liabilities at the time from the total assets. The eourt be- . low found that the initial cash of $1350 in 1943 had been consumed; and it was assumed, on the basis of the pre- sumption of innocence that, because Schipani filed no in- come tax returns for the years 1943 through 1955, he never. (except for a very small amount in 1945) in any of those years had a yearly gross income in. excess of the amount: which: would have required him to file a return. His ex- ‘penditures, however, were greatly i in excess of such amounts _ » of income.* It was, therefore; found that the cash on hand at the beginning of the indictment period, J nwnid 7 1956, 2 was zero.‘ a eee | aoe 8 Expenditures were made by defendant during the 1943 through 1955 of the following amounts segregated by calendar years. : 1943 $1,203.47 1949 _* ($3,691 73 1944 1,145.60. ° -. 1950 3,528:62 1945 1,145.34 . — 1951 3,804.05 — 1946 - 1,164.64 1952 4,912.86 ° 1947 - 8694.02 | - 1953 3,776.71 1948 = 3,138.80 1954 4,646.71 1955 7,079.72 ‘ Funds available to defendant on December 31 of each, of the years in the period from 1/1/43 to 12/31/55 segregated by. calen- dar years were as follows: 12/31/1943 $1,146.52 . 12/31/1944 955.91 12/31/1945 , 442.76" “12/31/1946/1955 —0— Appendia A—Opinion of United States Court of Appeals The other items of assets, which on that date were found » to total $18,908:89,° consisted of two ‘savings accounts in the Flatbush Savings Bank, an investment in United States Savings Bonds, real estate, and a 1955 Ford auitomobile. From this amount was subtracted a loan and a mortgage note totaling $1300. In the subsequent indictment years, 1957 through 1960, the total asset figures reflect purchases of ‘stock, furniture, and a boat as well as increases in the existing savings bank accounts and the opening of two additional small savings bank accounts. The liability total, which was deducted from the total value of the assets in - each of the’ years, also reflected additional increases in liabilities, most of which were associated with oan asset purchases during the same years.® | The Government in its proof’ and the trial cunt in its findings, in arriving at the opening net worth and in cal- culating the net increase in net worth for each of the indict- ment years, also made certain adjustments. The findings show that additions to the unadjusted figure included non- . “a 5 Defendant's total assets at the — and end of éach in- dictment year were Dectecmriie as follows: * 1/1/56 leads were... ~ provided, Thereby the other: prong of the Holland rule was bared ‘to disadvantage the defendant, for the Court. had written further — _ that, “[o]ncge the Government has established: its case, the defendant — " remains quiet at his peril. Cf. Yee Hem v: United States, 268 U.S. 178, 185,.45 S. Ct. 470, 472, 69 L. Ed. 904. The practical disadvan-. tages to the taxpayer are lessened by the pressures on the government to check and negate. relevant leads. gaan Other similarly illustrative situations which need 1 not here. be re-— stated. are presented in the cases, companion to Holland, of Fried- _ berg v. United States, 348 U.S. 142, 75 S. Ct. 138 and Smith v. United _ States, 348 U.S. 147, 157, 75 S. Ct. 194, 199. See also United. States v. Ford, 237 F. 2d 57, 62 (1956) case remanded to the District Court ‘ upon the suggestion of mootness with directions to vacate judgment of conviction and to. dismiss the indictment on that ground; Gariepy - _ v. United States, 189 F, 2d 459 (6th Cir. 1951) ; Remmer v. United. Stafes, 205 F. 2d 277, 286 (9th, - 1993); revérsed on other — —just’ tampering. “An estimate of the taxpayer’s net worth as the means. of deter- mining his income is resorted to in the absence of accurate records which it is his duty under the’ statute to [3825] make and to preserve, and by its ba 2 nature is an approximation; * * *.” Bell” v. United * - 9 ‘ A -36 Appendiz B—Offnion by Rosling, U.S.D.J. States, 185 F. 2d. 302, 308 (4th Cir. 1950), cert. denied 340 U.S. ' 930, 71 S. Ct. 492. See also Remmer v. United States, supra p. 287 ; Schuermann v. United States, 174 F. 2d 397 (8th Cir. 1949), cert. denied 338 US. an : ae ww The Exhibit 281 assets were the only ones found by the govern- - ment upon intensive investigation and in the absence of leads fur- nished by defendant or his wife. Cash: None. This has been earlier covered. | Bank Accounts are: Flatbush Savings Bank, accounts No. 202571, | 202787 and. 254040 [Exhibits 71-74. Tr. 585-609] and Masetti evaluation’ with his worksheets ‘and. analysis, [Exhibit-283 for sup- . port; M3079-3083] and Dime Savings Bank, a nominal account, No. | 1519081, maintaifred by defendant in the name of a friend Nancy Segreto so that he could qualify for a safe deposit box at the bank in the pretended depositor’s name. The bank rented vaults only to . depositors. [Tr. 1054-1057; Exhibits 145 and .146. Tr. 1062-1063, : 106721074, 1076-1086, “1090-1102, M3083-3084]: ; _ Investments are; Gurney’s Inn Corp. [Stipulation on trial, Tr. 1033-1044 ; Exhibit'141, M3084-3086] and. U. S. Savings Bonds [Tr., 608-626; Exhibit 75-79, M3086-3089}. Real Estate and Improvements are: 94 Brookline Avenue, Long Beach, two parcels purchased by defendant -from “Lenitz, one for $15,000 and the other for $540, and a strategic strip of land acquired from Clamons itt 1952 for $250. [Tr. 179-188; 202-215; Exhibit 15, 16 and 20, M3089-3091] and Jalousies [Stipulation, Tr. 2144-2149; Exhibit 221; M3091-3092]. io . Furnittire: From Levine [ Stipulation, Tr. 927-929; Exhibit 117 and }8; M3092-3094] and Selwyn-Pomeroy [Stipulation, Tr. 678- 696, 704-705 ; Exhibit 85-87 ; M3095-3097]. Automobiles and Boat: 1955 Ford [Tr.: 628-642; Exhibit 80; M3097-3100] purchased by defendant in wife’s maiden name and disposed of in 1956. Hence, $2,704, its cost is eliminated from 12/31/56 net worth and $1,214 ($2,704 less [3826] $1,490 its market value, taken as evidence of the sum realized on disposition) is entered -—~ 4 on Exhibit.285 (“Adjustments to Net ‘Worth”, q.v.) as increase in” net worth for the following year. The adjustment correctly reflects the exchange effect of the transaction [M3170-3176]. ri A-37 | Appendix B—Opinion by Rosling, U.S.D.J. 1957 Ford purcliased by defendant from Wolff Motors in 1956, defendant again using his wife’s maidén name. [Stipulation, Tr. 970- 973, 989 ; Exhibit 130; M3100-3101] Purchase was financed through . Manufacturers Trust Co. [Tr. 994-1007; Exhibit 131-134; Testi- _mony of Louis Esposito, Tr. 2268, et seq. passim.] In 1960 this automobile was res6ld to Lynn Motors for $700 [Stipulation, Tr. _ 2619] and accordingly was not thereafter included in the 1960 year- end net worth statement [Exhibif 281]. The effect of such purchase and resale was properly accounted for in the computation of defen- dant’s 1960 gross income by adding $1,790.91 to defendant’s 1960 increase in net worth [Exhibit 285], and simultaneously eliminating _ $2,490.01, the cost of acquisition, from defendant's net worth at 12/31/60 [Exhibit 281; M3176-3179}. Boat purchased in 1958 by defendant with his own funds and for own use in the name of his friend Esposito. Price paid. was $2,100 plus a trfde in of another boat. "[Tr. 2024-2030, 2035-2090, 2268- 2289 ; Exhibit 214-217] The purthase was financed through Franklin National Bank with defendant using Esposito as the nominal bor- rower. [Tr. 2052-2060, 2071-2074, 2175-2194; Exhibit, 214-217 230.} Subsequently the loan installments were paid by defendant with . * bank money orders which defendant himself signed, affixing, “how- . “ever, Esposito’s name as the ostensible signatory. [Stipulation 2632; Exhibit 231-x-23] ! , * Exhibit 281 lists as liabilities of defendant during the 1956-1960 period the amount of principal owed by defendant on his loan obliga- tions at the end of each indictment year. Interest payments made by defendant on the principal indebtedness scheduled in Exhibit 281 as liabilities as well as finance charges incurred in connection with the consummation of these obligations are set ouit in the list of deten- dant’s expenditures on Exhibit 286 and 28-A, later considered and discussed. The-iabilities follow : ee are ) Lenite mortgage arising out of the purchase of the Brookline prop- erty. [Tr. 179-199; Exhibit 17; M3102-3104] ; [3827] ‘ ! . Colonial Realty’Co., $10,000 mortgage raised by defendant on such ota [Tr. 730, 744, 765-766 ; Exhibit 101-106, 109-x-23 ; M3104- 3107] | _ Franklin National Bank—Loan to finance defendant’s purchase of - jalousies. [Tr. 2159-2175 ; Exhibit 221, 227-229: M3107-3111} A38 Appendix B—Opinion by Rosling, U.S.D.J. Associates Discount Corp.—Loan to finance purchase of 1955 Ford. _ [Tr. 628-642 ; Exhibits 80 and 81 ; M3112-3115] 3 Manufacturers Trust Co.—Loan to finance purchase of the 1957 Ford. [Tr. 994-1007 ; Exhibit 130-134 ; M3115-3118] _ Franklin: National Bank—Loan to finance boat purchased by de- fendant in the cover name of Esposito. [Tr. 2175-2194, 2632 ; Exhibit 214-217, 230-231; M3118-3121] © _ Marion Levine—Furniture purchased from Levine on deferred payments. [Stipulation, Tr. 927-929; Exhibit 117 and 118; M3121- 3122] 7 Selwyn-Pomeroy—Furniture purchased’ from the seller, likewise on deferred payments. [Stipulation, Tr. 678-696, 704-705 ; Exhibit 85-87 ; M 3122-3124] Pesan ~ © The items entered upon the combined Exhibit 286/286-A are too numerous for detailed or for even limited analysis. They are accord- ingly listed herein with pertinent transcript references only. Despite their volume they draw a picture that is no doubt incomplete. That doés not, without more, detract from the efficiency of the prosecution’s " proof in establishing the requisite prima facie showing. The good faith . _ of the prosecution, its skill and its industry, in investigation, alf have been ‘demonstrated to the cqurt’s satisfaction beyond a reasonable doubt. In the absence of leads supplied by defendant, no inference thay be drawn by the court that further prospecting in areas which the defense does not even now designate would be fruitful in defendant’s interest. The expenditures which the court finds fully established are: Rent—Nineteen Building Co. [Tr. 132-860} Exhibit 10-14; - M3136-3137] Insurance. premiums—Metropolitan Life Insurance Co. [Tr. 234- . 261; Exhibit 24-27 ; M3139-3140] ’ [3828] a ‘Gardening—Louis Biamonte & Sons. [Stipulation, Tr. 337-339; Exhibits 47 and 48] ~ “ Property taxes—94 Brookline Avenue—See discussion supra. Brooklyn Union Gas Co.—[Stipulation, Tr. 387-391; Exhibit 51 and 52] tie a a a a A-39_ py oF Agpentio B—Opinion by Rosling, U. s. DJ. Roosevelt Cirainint te 547-554, 566-567 ; Exhibits 61 and 62] New York Telephone Co —[Stipulation, Tr. 57 1-583 ; Exhibits 66-70] Insurance Premiums—John Hancock Life Insurance Co. [Exhibit- 34, Tr. 320-330; 412; Exhibit 35, Tr. 393-397, 403, 405, 410-411; Exhibit 36, Tr. 426-428 ; Exhibit 37, Tr. 405-410; Exhibit 38, Tr - -412-415; Exhibit 39, Tr. 415-418; Exhibit 40, Tr. 419-420, 425, 426; ~ Exhibit 41, Tr. 428-431 ; Exhibit 42 and 54, Tr. 432-433, 446-447, 461- 466; Exhibit 43 and 57, Tr. 504-505, 508-517; Exhibit 44 and 56, Tr. 475-476, 485-488; Exhibit 45 and 55, Tr. 466-474 ; Exhibit 46, Tr. 490-491, 495- 504 ; Exhibit 58-x-23—Stipulation, Tr. 520] . Gonsolidated Edison Co re, Tr. 712-715, Exhibit 92 and 93] : ‘M ortgage—Brookline ‘hreniieethanias Tr. 188-195, Exhibit 17] _Haberdashery—([Levin—Stipulation, Tr. 709-711, Exhibit 90 and 91] 3 , : Madison French Cleaners—[ Stipulation, Tr. 706-709, Exhibit 89] S. Friedman Furs: Inc.—[Stipulation, Tr. 716-719, Exhibit 94 and 95] Gyieninchien Membership for defendant’s wife—| Bay Factors, | Stipulation, Tr. 719-722, Exhibit 96 and 97] ° | - Plumbing—94 Brookline Avenue—[H. V. Snow, Stipulation, Tr. ~ 723-729, Exhibit 98 and 99] Dr. A. Sternbach—[Stipulation, Tr. 933-935, Exhibits 123 and 124] | - Dr. pinwile Kaufman—[Stipilation, Tr. 931-933, Exhibits 121 and 122] [3829] St, Francis Prep. School—[Stipuation, Tr. 929-931, Exhibits 119 and 120] Insurance, iat Cadena Realty Corp—[Tr. 745-746, 749, . 753-759, 766 ; Exhibit 107 and 109-x-23 ; M3145-3146] Interest Payments—Colonial Realty C orp.—[Tr. 730-744, ‘765- 769 ; Exhibits 101-106, 109-x-23;; evant r A-40 | Appendia B—Opinion by Rosling, U.S.D.J. Mortgage Expense—Colonial Realty Corp—[Tr. 937-939; Ex- hibit 101-105 ; M3146-3147] - - Safe Deposit Box—Dime Savings Bank—Defendant used name of ‘a friend’s wife, Nancy Segreto, as lessee. [Tr. 1044-1053, 1060-1061 ; . 1062-1063, 1067-1074, 1076-1086, 1090-1102, 1806-1810. Stipulation, — - Tr,-2631+3631-A, Exhibits 142-144; M3147-3148] Maid full time—Ada Graham—[Stipulation, Tr. 1018-1019] Dr. H. B. Herman—[Stipulation, Tr. 1027-1028; Exhibit 136] Dr. Barnett A. Greene—[Stipulation, Tr. 1028-1030; Exhibits 137 and 138-x-23] Dr. Robert L. Fisher—[Stipulation, Tr. 1031-1033; Exhibits 139 and 140-x-23] Interest and late charges re 1955 Ford purchased by defendant and _ financed by Associates. Discount Corp. [Tr. 628-642, 656; Exhibits 80 and 81; M3149] tae Interest re financing 1957 Ford, Manufacturers Trust Co. [Tr.. 994-1007 ; Exhibit 130-134 ; M3149-3151] Dr. Joseph Eisenstein—[Stipulation, Tr. 1140-1143 ; Exhibits 149 and 150-x-23] ' New York Phoenix School of Design—[Stipulation, Tr. .1143- 1146; Exhibit 141] Jewish Hospital of Brooklyn—(Stipulation, Tr. 1146-1149; Ex- hibit 152] 23) [3830] . a ° : . | Holy Innocents Building Fund—[Stipulation, Tr. 1152-1154; Ex- hibit 156-x-23] W edding of defendant's son Joseph—Belmont Plaza Banquet Inc. | [Stipulation, Tr. 1155-1158; Exhibit 158] » Kayne Miller Orchestra [Stipulation; Tr. 1159-1162; Exhibit 160-161]; Atlas Floral Deco- ratoss [Stipulation, Tr. 1162-1163; Exhibit 162]; Ben Zuckerman [ Stipulation, Tr. 1163-1165, Exhibit 163-164], Church of St. Ann—[Stipuiation, Tr. 1149-1151; Exhibit 153-x- ——— er a A-4l1 . z _Appendia B—Opinion by Rosling, U.S.D.J. Maimonides Hospital—[Stipulation, Tr. 1179-1181: Exhibits 166 and 167] | Whitehouse Garage—{Stipulation, Tr. 1181-1188; Exhibit 193] Long Island Water Corp —| Stipulation, Tr. 1190-1192; Exhibits 168 and 169] General Motors Acceptance Corp—Payments on a 1960 Olds- mobile purchased by defendant’s son. [Tr. 1398-1399, 1407-1408; 1816-1817 ; 1853-1855; Stipulation, 2632-2633; Exhibits 177 and 178, M3154-3155] . Unity Hospital—[Tr. 1751 ; Exhibit 154] | Mme. Denise french Cleaners—(T, 1412-1417, 2629, Exhibit 179]. — . Rental of cars—Craft eile Inc. em Tr. 1426-1430, Exhibit 180 and 181] Long Island Lighting Co. _[Stipulation, Tr. 1430-1444, Exhibit 182] | Plumbing—Brookline Avenue—Moriarty and Sherman—[Stipu- lation, Tr. 1434-1437, Exhibit 183 and 184] Home Carpet Cteamerg— [Sa geaen, Tr. 2149-2152, Exhibit 222 and 223} M. Kavanagh & Son—[Stipulation, Tr. 2154-2156, Exhibit 224 and 225] Laurel Floor Comwtng—eiptaion, Hr. 2156-2158, Exhibit 226) Jolousies—interest and late payment penalties—Franklin National Bank [Tr. 2159-2175; Exhibit 221, 227-229; paler 3831 : Bent Insurance—Parsons icin, 2282-2289] Tickets to a business association function—Dominick ‘Londo— [Tr. 1994-1995, 2629; Exhibit 212] Boat—interest paid re financing—Franklin National Bank— [Tr. 2175-2194; Exhibits 214-217, 230, 231; M3158 and 3159] Vulpis Heating Corp.—{Tr. 2337-2341 ; ; Exhibit 243]. pe, Bed - Appendia B—Opinion by Rosling, U.S.D.J._ "Fuel Oil—[Vulpolene Corp—Tr. '2342-2347-A ; Exhibit 244] Boat rental—[Eagle Fishing Pier—Tr. 2516-2525, ‘2538-2540, 2633 ; Exhibits 239-x-23 and 248] . Insurance premiums, _general—Frank Romanzi, insurance broker [Tr. 1802-1805, 2213-2229, 2261-2263, 2496-2512, 2515; Exhibits 200-201-x-23, 232, 236, 238, 247; M3159] I nsurance premium— Arthur - C. Lenitz oe, sacaataedl Tr. 2582. 2584; Exhibit 252-x-23] Dresses—Lillie Rubin [Stipulation, Tr. 2579-2382 ; Exhibit ~ 251) | . Rumplers Youth C. enter, Inc. . pean, Tr. "2585-2587 ; Ex- hibit 254] Dr. M. D. Roven [Stipulation, Tr. 2587-2588; "Exhibits: 255 ~ and 256] Rosedale Florist [ Stipulation, Tr. 2589-2591 ; Exhibits 257 and 258] ' - « Dr. George A. Rawler [Stipuation, Ft. 2501-2593 : Exhibits 259 and 260] — Drug store purchases—Reid and Youmans [Stipulation, Tr. 2594-2595 ; Exhibit 261] .4 Purchasé—painting—French American Gallery—[Stipulation, Tr. 2595-2596 ; Exhibit 262] Atlantic Television Co —[Stipalaton, Tr. 2596-2598; Exhibit . 263-x-23] Dr. S taney - Greenfield-—[ Stipulation, Tr. 2508-2600; Exhibits 264 and 265] | [3832] - Dr. Hyman S trauss—[Stipulation, Tr. 2600-2601 ; Exhibit 266) - Swim suit—Treasure Trove (Stipulation, Tr. 2602-2603; Ex- © hibit 267] Carol Dairy—[Stipulation, Tr. 2603-2604 ;, Exhibit 268) . Bordens Farm Products-(Stipulation, Tr. 2604-2605] Sylvan Dairy Inc—[Stipulation, Tr. 2605-2606-A] - Appendix B—Opinion by Rosling, U.S.D.J. | ieidiaiis for Brookline Avenue—F. M. O’Rourke deaacaane _ Tr. 2615-2616; Exhibit‘ 277) . | Joe Morley Electrical Co. —[Stipulation, my 2507-2600; Ex- . hibits 271 and 272] Vinny and Rogers Meat M arket—[Stipulation, Tr. --2609-26}1 ; Exhibit 273-x-23] | De Rand Market—[Stipulation, Tr. 2617] Bianchi Boat Dadian eae, Tr. 2611-2614 ; Exhibits 274 and 275] Traffic Summons and Control Buretu—This covers payment of parking tickets by defendant during 1956-1958. The transactions were conducted by defendant who used for the purpose’ the name » of a friend, Joseph Dantuono. [Stipulation,*Tr. 1512, 2629-2631, - 2639-2644, 2649-2653,. 2655-2657 ; Defendant’s Exhibit ax 185- x-23] ~ Pots and jone—Purchesed from Kenro Sales and Service Corps [Stipulation, Tr. 2618-2619} The court finds that the defendant poovided'' the funds which were used applied or disbutsed. in making the foregoing expenditures. ui 10 Defendant’s children, Joseph i‘ and Frank, aged 27 and 22 respectively, testified that their mother, defendant’s wife, had never been employed, [Tr. 901-904, 1788-1791]. Pauline Trento, a friend for some eighteen or twenty years’ testified to similar effect, [Tr: 957-962]. In -an admission record of the Unity Hospital, covering hospitalization of defendant’s wife in December 1959, he declared that she was a housewife, [Exhibit 154, Tr. 2393- -2398, 2406, 2411, 2634]. The Social Security Administration certified that its files disclosed no record reflecting any earnings by the wife, [Exhibit 7]. The I.R.S. found no income tax returns filed. by the wife at any time, [ Stipulation, Tr. 2621-2624]. ; The government’ s thorough investigation uncovered no evidence of receipt of income by her at any time. Exhibit 131, loan applica- tion which Mrs. Schipani submitted to the Manufacturers Trust Co. (see supra, fn. 8) provided the Government with a lead in the form of the representation she made therein to the Bank that she had been employed as a designer by the Rosetta Coat Co. for ten years. ; - A-44 | | Appendia, B—Opinion by Roslin, U.S.D.F. When this lead was checked, however, it developed that she had never been so employed. Rosetta did not even employ a “designer” in its business, [Exhibit 170, Tr. 1229, Exhibit 131, Tr. 1728- 1729, 1737] , Nor did defendant’s children furnish _any of the funds their father expended. [Stipulation as to part; Tr. 525, 903-906, 1788- 1789] : _ 11 Adjustment items of addition are defendant's expenditures, [Finding of: Fact 8, fn. 9, Exhibit 286/286-A] ; loss on the disposi- tion of the 1955 Ford car in 1956 and on the sale of the 1957 Ford in 1960.. [See fn. 7, “Automobiles and Boat”’] ag s Adjustment items applied in reduction consist of the following: Statutory $50 exclusion from taxable income of dividends on the Gurney’s Inn stock. These dividends had been applied by defendant to the acquisition of the stock and were accordingly charged to defen- - dant in the asset schedule [Exhibit 281] as part of the investment. [Stipulation, Tr. 1033-1044, Exhibit 141, M3180] ; Other items, all quite small with one exception, namely $1025.13 proceeds of a John Hancock Life Insurance policy, and requiring no ‘ special comment. ; .- [Tr. 261-267, Exhibit 28; Tr. 2935-2936; Exhibit 280; Exhibit 54; Tr. 392-393, Exhibit 53; Tr. 737-739; Exhibit.104, M3181; Tr. 290, Exhibit 33; Tr. 2140-2141, 2286-2289, Exhibit 22] [3834] , eee 12 The government’s investigation educed no evidence, direct or circumstantial, that defendant had received any taxable loans, ‘gifts, inheritances or other donations, non-taxable as income. It is true that the inquiry did not embrace the records of every one of the tens of thousands of governmental subdivisions and agencies, domestic and foreign, where information might have-been sought. The ampli- tude of the inquiry it made was, however, consonant with what is found reasonable in light of defendant’s failure to supply leads when solicited by government representatives to furnish them. (See. M2964.2990 for conspectus of the problem created by defendant’s noncooperativeness and the measures adopted to cope with the situa- tion.) The conclusions testified to as arrived at by Mr. Masetti are accepted by the court as valid beyond a reasonable doubt. cs bs A-52.__ Appendix B—Opinion by Rosling, U.8.D.J. is rejected, but in light of its manifest and purposive falsity intended by the witness to aid defendant, it is upon evaluation and in its con- text found by the court to provide an evidéntiary. basis for an inference, hereinafter discussed and formulated, as to what approximately was the true situation which the witness sought td distort or withhold. Indisputably defendant on at least one occasion—in 1959—had evinced a maftked interest in’ benefitting the Casa Bianca’ financially. This he had done by urging Mrs. Corwin to stop in with her husband at the restaurant whenever they were in the neighborhood, and to divert her patronage from the Hamilton House to which she had been accustomed and to resort to the Casa Bianca. [Tr. 1269-1276] The significance of his interest which might otherwise have been slight is found in another incident which she related, namely, that on a prior occasion, the date of which is unclear, defendant had told Mrs. Corwin that he had an interest in a restaurant, the name of which he did not mention? In answering questions of the prosecutor directed toward having her fix a date for the conversation, she gave responses which the court finds utterly incredible. After many protestations that her memory for dates was poor, to-the accompaniment of endless incon- sistencies and ‘self-contradictions, she finally came to rest on a claim that the conversation in the cours¢ of which defendant’s admission had been made and which had by her estimate consumed no more than ten minutes, was engaged in twenty-two or twenty-three years before. ‘It could have been twenty-four or twenty-five years she was prepared to concede but not as féw as twenty-one. That the witness was lying was patent not alone from the content of the testimony she gave, but also from the manner of its, delivery. Called by the prosecution; she was endlessly evasive, unresponsive and seemingly unable to understand the simplest questions put by the U. S. Attorney. Much of this air of confusion and ignorance was in the court's view mere pretence, for-she exhibited no such difficulty in answering defensé counsel when he latet took over the inquiry. To him she delivered short, crisp and relevant replies. os [3842] retrogress the incident to a past as remote from the indictment years as. possible, draws the inference as the only reasonable one to be distilled from the evidence, that the conversation in fact took place in a much more recent period than she assigned to it, and under The court accordingly, recognizing that her objective was to | core SOU es ee. = Appendis B—Opitiion by Rosling, U.S.D.J. sleuamastaieann which left a lasting impression upon the witness. [Tr. 1239.et seq. passim] After having laid a foundation for the impeachment of this manifestly hostile witness by interrogation concerning answers she allegedly had given in the course of an interview by Agent Robert Wynne less than a month before the trial, the U. S,. Attorney called Mr. Wynne to the stand’and elicited from him the information that Mrs. Corwin had at such interview reported the incident as having occurred about ten yours earlier, “during the 1950’s.” [Tr. 2874- 2877] ° The agent’s testimony was offered and received for impeachment " purposes only. If credited it might cancel out the witness’ attempt to relegate the conversation to a remote chronology which might deprive it of all probative value. The court in its discretion is author- ized to admit the testimony for such limited purpose even though the witness thus impeached has been called by the very party which seeks to nullify the effect of so much of the testimony elicited as conflicts with earlier extrajudicial statements. [United States v. Freeman, 302 F: 2d 347 (24 Cir. 1962) ; United States v. Fancher, 319 F. 2d 604 (2d Cir. 1962) ; Stevens v. United States, 256 F. 2d 619 (9th Cir. 1958) ; Ellis v. United States, 138 F. 2d 612 (8th Cir. 1943) ; Asaro v. Parisi, 297 F. 2d 859 (1st Cir. 1962), cert. denied 370 U.S. 904. Cf. Hickory v. United States, 151 U.S. 303, 14 S. Ct. 334 (1898) ; United States v. De Sisto, 329 F. 2d 929 (2d Cir. 1964), cert. denied 84 S. Ct. 1885.] The agent’s testimony is, moreover, cumulative insofar as its effect is to call into question the portion of Mrs. Corwin’s testimony _ bearing upon the date-of the conversation, and even without having received it the court would Lave made the evaluation indicated in this footnote. Tlie court had already given clear ir‘dication of such disbelief of Mrs. Corwin’s purported chronology. (See Tr. 2747, 2748, at which point before Mr. Wynne had testified the court’ had remarked that “I will take with more than one grain of salt her claim that she can remember a ten-minute conversation which took place . not as [recently] as 21 years ago, but it had to be more than 23 years ago.” The witness had in fact given as the likely outer limit of this brief talk a date twenty-five years before.) [3843] . Finally, that defendant was frequently at the Casa Bianca restau- rant and at odd hours not necessarily related to meal times is borne. . A-54 Appendia B—Opinion by Rosling, U.S.D.J. out by the testimony of a number of witnesses. Jerry Gross [Tr. 1880-1881].; Charles Perla [Tr. 1710]; Ralph Schipani [Tr. 888- 893]; Joseph Dartley [Tr. 1418-1422] ; Louis Esposito [Tr. 2273, '2274],; Pauline Trento [Tr. 963-964] ; and. Regina Attanasio [Tr. 2527-2538, 2620-2621, Exhibit 248]. The last ‘witness: mentioned produced a record book of her business (rental of slips for small pleasure craft) in which at page 93 appears the address of the Casa Bianca, a telephone number, the years “1959 to 1960”, the words “of Rest.” which last expression. the witness construed to be an abbreviation of “restaurant”, and the address of the .Long Beach > _ property, “94 Brookline (sic) Ave.” The information according to e the witness had been supplied by defendant. The name he used was an alias: L. Esposito. It appeared on the page in question. _ 16 That defendant had another likely source of income from activities in labor rélations is supported by no direct evidence, but circumstantial praof of some force is not wanting. Victor Matrunola, Vice President of Colonial Realty Co., while engaged in procurifig a $10,000 mortgage loan from a private lender for defendant prepared a work sheet, Exhibit 112-x-100,-on which "he jotted down along with other random notations information per- — - tinent to the credit of the borrower, nominally defendant’s wife, the record owner of the Brookline Avenue property. The loan, however, was being secured for defendant. [Tr. 733] The mortgage applica- tion, Exhibit 111, dated 3/10/56 was signed by both defendant and . his wife. After the transaction closed the interest and amortization payments during 1956-1960 to Colonial were all made by personal money. order signed by defendant, although some thus’ signed pur- ported to carry the wife’s signature.. [Exhibit 109, Tr. 766] : _ On the exhibit is a notation ‘which the court, on the basis of an analysis of _Matrunola’s testimony and that of Dominick Longo, defendant’s attorney, aided by reasonable inferences it draws from the evidence as to the probabilities inherent in the situation thus _ disclosed, -interprets as a record of a contemporaneous, i.e. in 1956, - representation, personally made by defendant to Matrunala, that _ defendant was a labor. consultant with an income of $12,500 a year _ from such activity. [Tr. 769 et seq., 1995-2001, 2014-2018] Two incidents lend color to the Matrunola flemorsndam. ‘\ a A-55 Appendix B—Opinion by Rosling, U.8.D.J. [3844] | | . : In 1954 Martin Leonard, attorney for Giovanni’s Restaurant, told defendant of difficulty his client was experiencing in negotiating a col- lective bargaining contract with the Chefs, Cooks and Pastry Workers Union, Defendant promised Leonard he would speak to a “friend” of his at the union to see if the friend could help. A few days later defen- dant told Leonard that the contact had been made and that Leonard should speak to the union again about the agreement. The contact seemed to have been productive, for a new contract was closed with little difficulty soon thereafter. [Tr. 1109-1128] ‘ Serving with the incident just noted to bracket the indictment years and sufficiently close to their end to cast a retrospective illumination upon defendant’s similar activities within that interval are two related episodes, both occurring in 1961, and involving one Jerry Gross and the troubles of his company, the Kleen Linen Service, Inc., with his union. Gross was in the laundry (linen supply) business, servicing the Casa Bianca and would on.occasion see defendant there. Gross ac- knowledged no more than a nodding acquaintance with defendant, yet although only after much equivocation and fencing, Gross admitted to having had’a conversation with defendant in the restaurant in 1961 _ about his problem. His testimony that Schipani-was only one of a group then present, and that his remarks were addressed to the entire group is scarcely believable in light of the subsequent individual interest of defendant in Gross’ problem. “On one occasion I asked Mr: Schi- _pani’s advice regarding picket lines,” Gross testified. In October 1961 Gross called defendant on the telephone at the Casa Bianca and asked him to come over to his place of business. There in his office Gross disclosed his union difficulties to Schipani who after. hearing him out declared—so Gfdss testified—that he couldn’t help. It wasn’t Schipani’s field—his business. Gross claimed to have spent 15 or 20 minutes in his recital to defendant before the latter said he could not help. [Tr. 1869 et seq.] _ Leonard and Gross both professed that no money had. passed hands in their respective consultations with defendant. The incidents, how- ever, as the witnesses narrate and embroider them give off that charac- teristic effuvium which customarily envelops back-door labor-manage- ment negotiations. The court is not persuaded that one so slightly known to the employers concerned before he evinced an interest in their problems was dltruistically motivated in his. interest. | A-56 Appendix B—Opinion by Rosling, U.S.DJ. . [3845] . aa 17 On the other hand, the contention pressed upon the court by the prosecution that the defendant in preindictment “admissions” made to government agents, who testified concerning them, that he was engaged in lucrative illegitimate activities, is rejected as lacking evidence of the requisite probative quality. The admissions are vague and uncorrob- orated—(See Smith v. United States, 348 U.S. 147, 156, 75 S. Ct. 194, 199 (1954) ; United States v. Calderon, 348 U.S. 160, 164, 75 S. Ct. 186, 188 (1954) )—and the testimony which embodies them does not persuade beyond a reasonable doubt that the specific words ascribed to the defendant were articulated ‘by him and with: the intent ascribed. - Finally, with these doubts regarding the evidence troubling the court as trier of the facts, uncertainty as to the legal reach of Escobedo v. Illinois, 378 U.S. 147, 156, 75 S. Ct. 194, 199 (1964), admonishes it to give the defendant the benefit of the doubt in this area of the proof. Justice White’s comment, though a dissenting and exaggerated stric- ture upon the Escobedo majority’s views, nevertheless by its very exag- geration warns that the sweep of the opinion may well bé tidal. The justice remarks’ with measured asperity that in light of Escobedo “de- fendant is constitutionally entitled to a. lawyer before, not after, he commits a crime, since-it is then that crucial incriminating evidence is put within the reach of the government by the would-be accused.” i 18 Government Agent Rosman, using the figures provided by the setti schedules computed the tax due for each of the indictment e elements entering into the final figure fixing the respective e set out in Exhibit 290 and are comprised of the fol- lowing: Gross ifreame [Exhibit 285, Tr. 3236-3237] ; uctions [Exhibit 283, 290, 29T>292, Tr. 3237-3247, 3293] ; Exemptions [Tr. 3249-3250] ; Taxable Inconie{Tr. 3250] ; Tax on line 5 [Tr. 3250] ; Dividends Received Credit [Tr. 3251]; Tax Liability [Exhibit, 3, Tr. 61-66; Exhibit 290, line 8, Tr™8233]. Deductions set out in - detail in Exhibit 291 are grouped, appropria under contributions, interest, taxes and medical expenses. 19 Wilfulness is clear. Much more than wilful failure to file a return, supply information or pay the tax, a misdemeanor under 26 U.S.C. § 7203, is here present. A long history ‘of nonfiling coupled with devious procedures of deliberate concealment of income by use of the names of others, including his wife’s maiden name, by absence of records, cash transactions, the use of bank money orders, and ‘other > . e . 4 - ° . » ‘ . e ° * - » . . x 8 — Seen . ee Sek ee eee . — . * . —A87 ——— B—Opinion by Rosling, U.S2D.J. ‘devices, in 1 their summation justify. a Sullice of a wilfull attempt to evade and defeat the income tax imposed by the Internal [3846] Reve- nue Code in violation of § 7201. See Holland v. United States, supra, 348 U.S. at p. 139; Spies v. United States, 317 U.S. at p. 497; United States v. Holovachka, 314 F. 2d 345, cert. denied 374 U.S. ‘809, 83 S. Ct. 1695; Cooper v. United States, 321 F. 2d 274, 277 (Sth Cir 1963), cert. denied 375 U.S. 964, 84 S. Ct. 482. a AO OE * 858 Appendiz B—Opinion by Rosling, U.S.D.J: [3847] _... APPENDIX | = Morton For A MistriaL BECAUSE OF ‘ALLEGED IBREGULARITY IN“, THE. PROCEEDINGS Unver 18 U:S.C. § 3500. + Defendant, in his brief after trial, pp. 21-24, contends that error inheres in the circumstance that ‘‘several conferences [were] conducted by the court in chambers privately with’ _ the government attorney and out of the presence and over the objection of.the defendant and his attorney, in connec- tion with the screening of ‘3500’ materials, all of which was prejudicial and deprived defendant of his rights of due process of law under the fifth amendment and of confronta- tion under the sixth amendment.’’ | The subdivision of.the memorandum concludes, without citation of supporting authority, (p. 24) with a hesitant - motion for mistrial reading, ‘‘This we are most reluctant to . do, but, nevertheless, in order to preserve our position in the event of an appeal, we do hereby respeetfully (and _re- luctantly) move for a mistrial upon the grounds stated in the above subheading.’’ These grounds are those quoted in the opening paragraph of this appendix. . The reasons for the denial of the . motion (supra p. 3) follow: [3848] _ Express Consent Was Given 8 BY DEFENSE Cocioem: To THE PROCEDURE FOLLOWED. «se = " The procedure to which defendant claims to Rive ‘‘ob- . " jected’’ involves only, the Masetti material, the nature of which created grave and difficult problems for the court in vas % -A-59 | Appendix B—Opinion by Rosling, U.S.D.J. its processing under the statute. Mr. Lefkowitz was thor- oughly and happily familiar with this court’s liberal atti- tude respecting a turnover of § 3500 material to the defense. He had only recently before the instant trial been counsel for one of the defendants in another trial over which this | court presided, (See infra, p. 62) His express consent ~~ - which was here given only after detailed explanation of the “steps the court proposed to take could not have — | from confusion or misapprehension. The situation first arose atthe ‘aan of the govern- ment’s direct: testimony of Agent Wynne concerning inter- views with the witness Corwin. Mr. Wynne had made no notes, nor ‘had Mr. Masetti-who was likewise present at the. interviews done so. Mr. Ruby, the third of the government personnel in attendance, had made some attorney’s jottings. These he proposed to turn over to the court, alleging, how- ever, that they did not fall within the definition of a state- ment under’$ 3500(e).. The notes were not in his file in court. He thought they might be in his office. Some colloquy not pertinent to the immediate problem then ensued. The record. then continues [Tr. 2896], . “‘Mr. Lefkowidz : Well, your : inaee, I could repre- . sent to the Court at this time that if Mr. Ruby has no notes with reference to the [3849] particular inter- © view, and if they are—if they are not there, well, that is the end of the defense counsel’s cross-examination. ‘ 4 7” ’ 4 4 : Lx y P wer dee I A 66 od + 4 e a . : ° ‘ 4 >», - ai 4 . vos me e ‘ , a Appondia B—Opinion by Rosling, U: Sw. D. J. eth ‘the: parts deleted, are made a Court, Exhibit. 99 The ~ Hig “court assured him it bad been and that a stenographic rec- ord, of thé proceedings had been made and that the Clerk had been present: The court then in ‘summation asked [Tr. “. -3220], ‘‘So ts the arrangement satisfactory?” to which Mr. ra Lefkowitz. replied, ‘‘Yes, your.Honor.’’ eg The ‘colloquy which now followed was rather Sad “and dealt with an unrelated matter of proof.: The balance of ‘the day, as earlier, agreed, was consumed-in the. testimony _ _ of Mr. Rosman; the government: agent who had computed the tax due’ for the indictment years (See fi. 18, p.43 supra).” Recess. was then\taken over the weekend to- Montag: March’ L | , ‘On that. date the ivi aimounced its plan to = : with the conclusion of Rosman’s examination. This wéuld be followed with the Masetti § 3500 inquiry (in open court) “unless Mr. Lefkowitz,has other ideas.’’ Mr. Lefkowitz declared he had none. [Tr. 3290] Mr. Rosman then testified briefly. [3856] When he had concluded Mr. Ruby, announc- ing that he had a few other 3500 items that he wished to have marked. and turned over to defendant, all without in- camera. processing, proceeded: to do so, (Exhibits 293, = 3 295, 297 and 198 for identification]. ' The court thereupon inquired of the government attorney whether any of these documents now made available by . him to the defendant’ were among those which had been . merely enumerated in the General Exhibit 287 for Identifi- cation that Mr. Masetti had used as his master file, but. _which were not annexed thereto. Being. informed by Mr. > CR aCe caiteatrnltd ad B08 been VAG DG 9 _Mr. Ruby before turning him over to defens AST Aelia B—Opinion by Rostiig, U.S.D.J. Ruby that the Exhibits (293 through 298) just ddligsted to. the deferfse were not mentioned in 287 but were in addition to those listed therein, the court decided to ‘‘soften up’’ ounsel for § 3500,inquiry.as to what these subsidiary ocuments re- ferred to in Exhibit 287 were and as to-su be noted in the discussion which immediately follows the . court in this approach not: only had the exhortation. of the Court of Appeals of this circuit to serve as a guiding prin- . ciple, but itself cited the most.recent of the cases-which em- bodied it. The first of the cases noted [Tr. 3298] was United States v. Ellenbogen, 341 2d 893 (2d Cir. 2/25/65) the.slip memorandum in which the court had received only _ the preceding Saturday, two days earlier. From the opin- ~ ion in Ellenbogen written by the then Judge Marshall [3857] the court quoted several excerpts. The court re- marked in the context of its discourse that ‘‘Judge Marshall refers-us ‘to United States against Borelli, which I believe z I cited to you gentlemen last week.’’ In Borelli (supra, p. 52), it may be recalled, Judge Friendly inveighs against. the folly of the- U. S. Attorney i in jeopardizing hard-won - convictions by a scrimping approach to, what i is Jencks Act- discoverable. Noting that Judge Marshall.had ruled that ~ a sufficient nexus to the direct testimony of the witness — affected is shown to exist which requires disclosure when - the document in question may be useful, in the opinion of - the defense, rather than of the judge, even though only. as an auxiliary to cross-examination, “this court commented [Tr. 3301] that with ‘‘the Court of Appeals breathing — rather warmly on the judiciat neck of the District J si = > other matters a . . as might relevantly be the subject of interrogation. As will A680 nal -Appendia B—Opinion by Rosling, U. a D. J. —_— ia ‘Court will noi ‘be niggardly or. unduly’ seettlative in | considering what should and should not be produced. " Mr. Lefkawita then requested. that he be permitted to | - | take a. er from Mr. Ruby under § 3500 procedure. ‘ The Court, of course, granted the request, -whereupon Mr. Lefkowitz for the first time disclosed that he ane the § 3500 Laan objectionable. | RELATIONSHIP OF THE Ossecrion TO THE THEN PENDING | ApreaL 1n Unitep Starzs v. PERSICO, et al, Supsz-— | QUENTLY: Dzcwep anp Conviction’ REVERSED, 7 /23/65, — ON OTHER GROUNDS. 7 The § 3500 interrogation which ensued sniiaiad: of but two questions. put by Mr. Lefkowitz to Mr. ‘Ruby. Mr.—* -. Ruby’s.response supplied Mr. Lefkowitz with no informa- -tion [3858] that he and his client did not already and con-. temporaneously with the events know. from words spoken - and things seen and to which the attorney had: given ex- press assent. The court justifiably felt, as the record surely _ must persuade, that it had more than mere acquiescence on | the part of the defense in the routine followed, indeed ex- | 3 press and gratified approval. The gratification. was: under- standable in that unless the court’s open statements were to: be belied by: ‘its clandestine. contrary conduct, -which it, was- imprudent enough to have recorded by: a. clerk and court reporter for appellate court: review, the. ‘court had mani- fested an attitude, most liberal toward disclosure. ‘The two questions put by the defense | attorney | to Mr. Ruby and . his —: were these (Tr. 3303] > : Sete ee E : | Appendia B—Opinion by Roslin, us. spy. | hi 3 Q, Were you in Chambers with Judge) Rosli . to. indicate ‘to the Court which of the: portions in 2 7 you found objectionable to turning, over to se ~ Yes. * | 3 Q. And how long were ‘you with the J daa’ Y Wee I ‘think were were there on. two occasions, the nd ee time I would say about 45 minutes and the js Pay ie alf. time, it must have been Rothape an. 7 and a After some. further brief golloguy between the. court ts Mr. _Ruby,. Mr. Lefkowitz now and for the first time noted his: objection that the presence in camera of Mr. Ruby with- - out’ both- defendant and counsel likewise in attentlance was legally impermissible. Counsel did not follow the overruling of his objection with a motion for a mistrial, but abandon- . ing the [3859] § 3500 interrogation, entered at once upon a the cross-examination of Mr. Masetti as part, of. the trial proper. fee A judge, sitting as the trier of the facts is. assumed. to have disregarded, unless his decision of the case affirma: ' tively demonstrates the contrary, illegal evidence and ex- . traneous considerations. So that there can be no question that this court has honored the precept. implicit in such okgérvation, the court gives such assurance. Of greater con- cern to defendant, surely, is the fact that with defendant — waiving a jury the court’s mere perusal of the sealed Ex- hibit 287 required in the performatice of its duty ‘under -§ 3500 brought to its attention matter which if the court iled to omit it from its consideration would be highly . ” : prejudicial to the defendant. This matter, too, the-court — represents it has for the purposes of its’role.as trier of the ‘ facts relegated to the lumberroom reserved for matteré that : Lb ae r a ey ™- : Z ’ a) A-70 . Appendia B—Opinion by Rosling, U.S.D.J. | never happened. ‘Some note will be taken in a later division of this opinion under an appropriately descriptive caption . ‘of the content of Exhibit 287. Immediately, however, our . attention is turned to a consideration of the post-trial mo- oN tion for a mistrial and its link with the fourth Persico trial and the appeal there!n then still undecided. ‘ Derenpant’s Morton FoR A Misrrian First MADE In ITs Post-Tr1aL Memoranpum (P. 24) Anp ITs RELATIONSHIP | To Unrrep States v. PErsico, Mr. Lefkowitz’s cross- examination of Mr. Masetti. [3860] occupies pages 3309 through 3435 of the. Transcript. Not . once did he in the course of such interrogation refer to the in camera Exhibit 287 or indicate that he had used it in preparation forthe Masetti questioning. A fortiori, ,he made no inquiry as to the contents of the numerous unan- nexed documents of which it provided ah index, nor‘ealled for their production. Nor did he seek enlightenment as to the nature of the inquisition which the government: repre- _sentatives had directed to the large number of individuals whose names alone were catalogued in the document. Nor did he probe as to.the contents of the statements, whether | signed or merely interview reports, which according to gov- ernment practice must have existed. He could have called for their production, without obligation to introduce them after his ex parte study of their contents, but did not do so. At the cindiiion of the prosecution’ 8 case which followed Mr. ‘Masetti’s brief redirect examination by Mr. Ruby— (there was no recross)—the government rested. ‘ ne . ——_ eee oe tne « AT1 ¢ : ‘ . aie . Appendix B—Opinion by Rosling,U.S.D.J. The following day, March 2, defendant made a number of motions, none of which remotely had reference to his ob- | jection to the Masetti § 3500 procedure, antl when these were all denied, absolutely or with qualification, he.too rested. (Tr. 3469] Defendant’s counsel thereupon renewed all mo- tions made by him at the’prosecution’s close and an addi- tional motion for a judgment of acquittal. Decisioti was “¥eserved by the court pending submission of briefs and pos- . sible oral argument. [3861] No motion for a mistrial on any ground had been urged, nor did the court leave open ———the opportunity to so move. [Tr. 3470-3486] It is in defendant’s post-trial brief ( page 22) that we first find ‘a motion for mistrial grounded on the § 3500 irregular- ity. He had not: found, the attorney acknowledges, ‘any decisional authority neerning such private in camera (sic)**practice. However, we are informed by Mr. Lefko- witz, ‘‘that this same oy is presently awaiting decision by the United States Coutt of Appeals for the Second Cir- cuit in United States v. Persico, et al.’’ . Professing to find a grave potentiality of prejudice to a endant in the procedure adopted, counsel proposes as an Iternative (brief.p. 23), ‘‘that if a Court feels the need of some kind of clerical assistance from the prosecutor in screening the ‘3500’ material, the Court on its own proper judicial initiative ori invite defense counsel to be present *Black’s Law Dictionary , Fourth Edition, defines. “In camera” me Md “In chambers ; amber in private # * 8. Webster's Third New Inter- ; ed (1961) gives as the meanings of the phiweer te “1, in the j 's chamber [the trial was held in camera.|, 2. in privaté: PrivaTety, Secretty,” [Italicized - matter in original is here underscored ; . The word *‘this’’ in section 5 leaves the court in doubt as to the precise referent. It is unclear whether what the opinion teaches is that only a canon of ethics as distin- guished from organic law was infringed and hence rever- sible error was not committed, or whether the finding that * _ the trial. was in any event fair was the controlling considera- — tion. The warning in Persico against repetition of action not- | withstanding no ground for reversal. was found therein presents an additional difficulty for this court in evaluating - the éurrent defendant’s belated objection and. motion for a [3870] mistrial, for the Persico text suggests that an ‘‘ex-. traordinary circumstance’? might despite the canon cited authorize the questioned procedure. A-80° laepaaaea B—Bpinion by Rosling U. 8. DJ. CR SABRE DSL We SABRE hs RIM gi NL Na IN 8 ic SE SepdemuTbernty { Detail ROMO AS 5 8 Nh AS Seale ae ’ . “A105 Siiesie B—Opinion by Rosling, US. 7 J. : A 5 Vaccaro had testified ‘at a later point in the fourth trial in the _absence of the jury as to a similar incident which had occurred while the jury was present and he was on the stand. The occurreice received partial substantiation from a marshal. In his case the intimidation was “a drawing of the hand around the throat. The culprit was.a relative. of a defendant who unobserved and contrary to the court’s general direction had seated himself in an area forbidden by the court to the , trial buffs as san iad in line with the witness on the stand. A 6 See Wowiitie v. United States, 81 S. Ct. 642 (1961) ; Cathe: v. United States, 82 S. Ct. 662, review denied 369 U.S. 868, 82 S. Ct. 1137 (1962) ; United States v. Di Pietro, 302 F. 2d 612 (2d Cir. 1962) ; United States v. Bentvena,.288 F. 2d 442 (2d Cir. 1961). The court did not immediately, but ultimately did remand the defendants. : The j a di was not sequestered until the court ae its charge. [3898] wide! ; A? Jury fixing was not an unheard of possibility at the time that — Persico IV was being tried. The Hoffa trial was simultaneously going forward. A fourth trial could not be halted. for immediate investigation of the charges. Thete would be a grave possibility of « mistrial and the prospect of claims by defendants of. double jeopardy if a fifth trial were to be undertaken. The defendants were already asserting that a fourth trial was subject to such challenge. The court, accordingly, informed the attorneys for the defendants as often— and it was quite often—as they moved’ for immediate action which invariably, was coupled with demands for immediate interrogation _ . of the jury, that it would not risk ‘ ‘poisoning” the minds of the jurors by bringing to their notice matters of which they might not up to: that moment have been aware. Instead, the court declared, the - proceedings would be deferred until the jury had rendered its verdict. Significantly, no post-verdict applications were made by counsel to. -have the jury questioned ites such procedure was left open to them. ; ote A®Cf. Roviaro v. United Sintes 353 US. 53, 77 S. Ct. 623 (1957) in which the court declared U.S. at p. 59 and S. Ct. at p. 627: “What is usually referred-‘to as the informer’s privilege is in reality the Government’s privilege to withhold from dis- -closure the identity of persons who furnish information of violations of law to officers charged with enforcement of that. a | A106: ° Appenidix B—Opinion by Rosling)U.S.D.J. law. Scher v. United’ States, 305. U.S. 251, 254, 59 S. Ct. 174, - 176, 83 L, Ed. 151; In re Quarles and Butler, 158 U.S. 532, 15S: Ct. 959, 39 L. Ed 1080; Vogel v. Gruaz, 110 U.S. 311, 316, 4S. Ct, 12, 14, 28 L. Ed. 158. The purpose of the privi- ; - lege is the furtherance and protection of the public interest in ‘effective law ‘enforcement. .The privilege recognizes the _ obligation of citizens to communicate. their knowledge of the . » commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that “> obligation.” —— fui ibid. at pp. 628 and 629 veinentintle: . + “We believe that no fixed ‘rule with respect to disclosure i is - justifiable. The problem ‘is: one that calls for balancing the } _- public. interest in [3899] protecting the flow of information " against the individual’s right to prepare his defense. Whether: a proper balance réefiders nondisclosure erroneous must depend . on the particular circumstarices of each case, taking into con- _” sideration the crime charged, the possible defenses, the pos- _ sible significance of theinformer’ s testimony, and other rele- _ me vant factors. » pple “A& The ‘case cited was the “trial-of Aaron Burr fora shiebiiilies in beginning, setting.on foot, and providing the mearis of, a military expedition against the dominions or territory of the king of Spain.” ~ Chief Justice’ John Marshall presided over the “meetings” of the Circuit Court which with the aid of a jury tried the charge. The verdict was of acquittal, but it was ‘not rendered until the Chief Justice had. preliminarily Considered and ruled on the question still ‘' mot yet’ “yr? resolved,.as to what to do when an accused’s demand upon the’ sfate.to produce for the possible aid it may give to his “defense a document éncounters head-on a claim by the prosecution that paramount public:interest "bars disclosure. The writings in con- - troversy were letters written by Geriéral Wilkinson to the President of. the United States. It is interesting to‘ note that a compromise acapend was rejonted by the defense. ts proposak whereby only Colonel Burr’s counsel would be permitted to \ \ examine the letters; the U. S. Attorney “depend[ing] on their candor to thake no improper disclosures; and if there should be any differ- . ence of opinion as to what were confidential passages, the court should ee ey Qs —_———~ | A-107 Appendia B—Opinion by Rosling, U.S.D.J. ' Charging that the procedure contemplated a “secret tribunal” and that they “had a right to hear the letter[s] publicly,” defense counsel “united in refusing the inspect anything that was not also submitted . “to the inspection of their client.” The trial bench. with the Chief Justice as its spokesman was able to circumvent the problem by holding that the privilege of nondis- closure wes personal to President. Jefferson who i was ‘noted iid not | appear to have asserted it. ; 4 10 § 3500 was enacted two years 7 Jencks to cure its “errors.” [3900] | ee A411 The Jencks Act unquestionably, among other matters, rein- stated the procedure, which the Supreme Court, had explicitly dis- approved, of requiring that the subject documents be delivered to the court before their turnover to the defendant. The court was again in such event required to conduct an ex parte examtination when the U. S. Attorney objected to their qualification as “statements” within the intent of $3500(e) ; and again appellate review as to the portions withheld by the trial judge’s direction was similarly ex parte, with the defendant excluded from prosecuting an effective appeal, since effectiveness required knowledge of what had not been disclosed. A412 Even more disturbing than the Canon is the sentiment ‘of Seneca, Nero’s ancient tutor who, in his Medea sagely remarks, “Qui Statuit aliquid, parte inaudita dltera, aequum licet statuerit, hand . aeywus fuerit.” (He who decides a case without hearing the other side, though he decide justly, cannot be considered just.) If valid - and strictly applied, the aphorism the venerable R sponsors might render constitutionally dubious the entire Jencks Act in camera _procedure, and compel a reinstitution of the Jencks case norms. . A-108 APPENDIX C ~ _ Judgment of the United States Court of — At a Stated Term. of the United. States Court of Appeals, in and for the Sec- ond Circuit, held at the United"States — Court House, in the City of New York, on the. twenty-ninth: day of June, one thousand nine hundred and sixty-six. : Present: Hon. Srerry R. Waterman, | ‘Hon. Leonarp P. Moors, Hon. Rosert P. ANDERSON, , Circuit Judges. Unirep States oF America, | _ Plaintiff-Appellee, . v. | a J OSEPH F, Scurrant, Defendant- Appellant Ss vv - ~ Appeal from the United ‘States District Court for the Eastern District of New York, and was argued by counsel. This cause came ‘on to be heard on the transcript of rec- ord from the United States District Court for the Eastern | District of, New York, and was | argued: by counsel. A-109 . Appendix C—Judgment of United States Court a Appeals - Ow Coenienesion Wuznzor, it is now hereby ordered, adjudged, and decreed that the J udgment of said ‘Patent Court, be and it hereby is affirmed. | ° /s/ A. Dante Fusaro Clerk = --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1755%3A2. Public record. Not legal advice.