355 U.S. 339 (1958), 9, Lawn v. United States

Docket Nº:No. 9
Citation:355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321
Party Name:Lawn v. United States
Case Date:January 13, 1958
Court:United States Supreme Court

Page 339

355 U.S. 339 (1958)

78 S.Ct. 311, 2 L.Ed.2d 321

Lawn

v.

United States

No. 9

United States Supreme Court

Jan. 13, 1958

Argued October 14, 1957

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

Indictments returned by a grand jury in 1952, charging petitioners with evading and conspiring to evade federal income taxes, were dismissed by the District Court on the ground that their constitutional privilege against self-incrimination had been violated by requiring them to testify and produce records before that grand jury while criminal informations charging tax evasions were pending against them, without being warned of their constitutional privilege. In 1953, they were indicted by another grand jury for substantially the same offenses, and they were convicted in a federal court. Both before and at the beginning of their trial, they moved (1) for a hearing to determine whether, in procuring the indictment, the Government had used testimony given or documents produced by them before the 1952 grand jury or leads and clues furnished thereby, and (2) to suppress the use at the trial of all such evidence and all evidence derived therefrom. The court denied these motions, but said that if, during the trial, petitioners had reason to believe that illegally obtained material was being or might be used against them, they could object at that time. On appeal, they challenged the validity of their convictions because of denial of these motions and on other grounds.

Held: the convictions are sustained. Pp. 341-363.

1. In the circumstances of this case, petitioners were not entitled to a preliminary hearing to enable them to satisfy their unsupported suspicions that the 1953 grand jury which returned this indictment had made direct or derivative use of the materials they had produced before the 1952 grand jury. Pp. 348-350.

(a) Petitioners had laid no foundation for the holding of such a preliminary hearing. Pp. 348-349.

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(b) An indictment returned by a legally constituted unbiased grand jury, if valid on its face, is enough to call for a trial of the charge on the merits, and satisfies the requirements of the Fifth Amendment. Pp. 349-350.

2. Receipt in evidence at the trial of a photostatic copy of a canceled check and its corresponding check stub, obtained from petitioner Lawn in the 1952 grand jury proceeding, did not deprive him of due process in violation of the Fifth Amendment, because it appears from the record that his counsel consciously and intentionally waived any objection to their receipt in evidence. Pp. 350-355.

(a) In the circumstances of this case, denial of petitioners' pretrial motion to suppress the use in evidence of materials obtained from petitioners in the 1952 grand jury proceeding did not preserve Lawn's objections to these exhibits when his counsel consciously and intentionally waived objection to them. Pp. 353-354.

(b) The Government has filed in this Court what is said to be a transcript of a hearing accorded Lawn at his request in 1952, which it says contains photostatic copies of the check and check stub in question voluntarily produced by him; but his motion to strike the transcript and the portions of the Government's brief relating thereto is sustained, as this Court looks only to the certified record in deciding questions presented. P. 354.

3. On the record in this case, there is no factual basis for petitioners' contention that they were denied an opportunity to examine and cross-examine witnesses at the trial to determine whether evidence derived from leads and clues furnished by materials obtained from them in the 1952 grand jury proceedings was used by the prosecution at the trial, and that this deprived them of due process in violation of the Fifth Amendment. Pp. 355-358.

4. The evidence was sufficient to sustain the convictions of petitioners Lawn and Livorsi. Pp. 358-362.

5. On the record in this case, petitioner Lawn was not deprived of a fair trial by a statement made by government counsel in his closing summation to the jury that, "We vouch for [Roth and Lubben] because we think they are telling the truth." P. 359, n, 15.

6. The contention of petitioners Giglio and Livorsi that the trial court erred in denying their motion for production of Lubben's federal income tax return for 1946, all testimony given by him before the grand jury, and all written statements made by him to

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any agent of the Government is not properly before this Court, because that issue was not raised in the Court of Appeals nor mentioned in the petition for certiorari filed in this Court. P. 362, n. 16.

232 F.2d 589 affirmed.

WHITTAKER, J., lead opinion

MR. JUSTICE WHITTAKER delivered the opinion of the Court.

On July 23, 1953, a 10-count indictment was returned in the United States District Court for the Southern District of New York charging petitioners and others with evading, and conspiring to evade, assessment and payment of a large amount of federal income taxes for the year 1946 in violation of the internal revenue laws (§§ 145(b) and 3793(b) of the Internal Revenue Code of 1939)1 and of the general conspiracy [78 S.Ct. 314] statute (18

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U.S.C. § 371). After a protracted trial before a jury, petitioners were found guilty as charged.2 On appeal, the Court of Appeals found that there was substantial evidence that petitioners, operating through the media of several partnerships and corporations,3 conspired to evade, and by a variety of means did evade, both the

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assessment4 and the payment5 of more than $800,000 of individual and corporate federal income taxes for the year 19466 upon income derived from the World War II black market in sugar, and that petitioners Giglio and Livorsi, who owned equal interests in the several enterprises of which Giglio was the chief executive, were the principals in the conspiracy, but Roth, an accountant, and Lawn, a lawyer,7 provided the accounting and legal services required to carry out the conspiracy. It found that the evidence amply sustained the verdicts, and that no prejudicial error was committed at the trial, and it affirmed the judgments of conviction. United States v. Giglio, 232 F.2d 589. Upon petition by Lawn in No. 9, and by Giglio and Livorsi in No. 10, we granted certiorari. 352 U.S. 865. Because the challenged convictions resulted from a common trial at which petitioners were represented by the same counsel, and because several of the questions presented in each case are similar, the two cases will be decided in one opinion.

[78 S.Ct. 315] Petitioners ask this Court to reverse their convictions upon four main grounds. First, they contend, Lawn only

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tangentially, that they were deprived of due process in violation of the Fifth Amendment by the refusal of the District Court to conduct a full-dress hearing to determine whether testimony or documents obtained from them in a prior grand jury investigation, or evidence derived from leads and clues furnished thereby, was considered by the grand jury that returned the present indictment. Second, petitioner Lawn contends that receipt in evidence at the trial of a photostatic copy of a canceled check and its corresponding check stub, obtained from him in a prior grand jury investigation, deprived him of due process in violation of the Fifth Amendment. Third, petitioners contend they were denied an opportunity to examine and cross-examine witnesses at the trial to determine whether evidence derived from leads and clues furnished by testimony and documents obtained from petitioners in a prior grand jury investigation was used by the prosecution at the trial, and that this deprived them of due process in violation of the Fifth Amendment. And fourth, petitioners Lawn and Livorsi contend that the evidence does not support their convictions.

Understanding of petitioners' first and second contentions, and to a lesser extent their third contention, requires a review of the underlying facts upon which they are based. Revenue agents began an investigation in 1948 of petitioners' income tax liabilities, and, on September 14, 1950, three criminal informations were filed charging them with violation of the federal income tax laws. Those informations were not brought to trial because the Government had not completed its investigation, and later concluded that "much more serious crimes [were] involved." In early July, 1952, petitioners and Roth were served with subpoenas duces tecum commanding them to appear and testify before a grand jury on July 14, 1952, and to produce certain partnership and corporate records of the Giglio and Livorsi enterprises.

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They appeared and testified, but were not warned of their constitutional privilege against self-incrimination. Lawn produced three canceled checks made by Tavern Fruit Juice Co. payable to his order and the checkbook stub corresponding to the second check. Those instruments were there marked "G.J. Ex. [1, 2, 3 and 4, respectively] 7/15/52 L.F.G.," and were photostated by the United States Attorney and returned to Lawn. Giglio produced a quantity of records, including some partnership records, but stated that

practically all of these companies and corporations turned over the books and records to the Internal Revenue Department on some date in 1949.

On October 20, 1952, the grand jury returned six indictments against petitioners charging them with offenses similar to those charged in the present indictment. Petitioners moved to dismiss those indictments upon the ground that they had been procured, in part at least, upon evidence obtained from petitioners in violation of their Fifth Amendment rights. The District Court held that to require petitioners to testify and produce partnership and personal records before the grand jury, while criminal informations charging tax evasions were pending against them, without...

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