Alioto v. United States

• Decision Date: 18 April 1963
• Docket Number: Misc. No. 16.
• Citation: 216 F. Supp. 48
• Parties: Jennie ALIOTO, a/k/a Loretta Fischer et al., Petitioners, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

216 F. Supp. 48

Jennie ALIOTO, a/k/a Loretta Fischer et al., Petitioners, v. UNITED STATES of America, Respondent.

Misc. No. 16.

United States District Court E. D. Wisconsin.

April 18, 1963.

Maurice J. Walsh, Chicago, Ill., James M. Shellow and Gilda B. Shellow, Milwaukee, Wis., for petitioners.

Walter Barnes, Atty., Dept. of Justice, Washington, D. C., James B. Brennan, U. S. Atty., Milwaukee, Wis., for respondent.

GRUBB, District Judge.

This is an independent proceeding under Rule 41(e), Federal Rules of Criminal Procedure, Title 18 U.S.C.A., to secure the return of property seized under authority of a search warrant and for the suppression of the use of said property as evidence.

The movants are the seven corporations and one individual whose property was the object of the warrant; namely, Hotel Roosevelt, Inc.; The Pub, Inc.; Ben-Kay, Inc.; Tower Tavern, Inc.; Melody Lane, Inc.; Bonfire, Inc.; Badger State Boxing Club, Inc.; and Frank Peter Balistrieri; the custodian of the property at whose apartment the search and seizure occurred; namely Jennie Alioto, a/k/a Loretta Fischer; and five additional individuals and one corporation who claim that their property was seized in the execution of the warrant; namely, Peter Frank Balistrieri; Joseph Balistrieri; Benedetta Balistrieri; Carl Dentice, d/b/a Carl Dentice Phonographs; Joseph Maniaci, d/b/a Henri's Show Lounge; and Club 26, Inc., a/k/a Villa Venice.

The search warrant in question was issued to and executed on September 26, 1962, by Ernest G. Johannes, Special Agent, Intelligence Division, Internal Revenue Service, and other Special Agents of said division. The warrant authorized the search of Apartment 406, 1609 North Prospect Avenue, Milwaukee, Wisconsin, occupied by Jennie Alioto "under the alias of Lorretta Fischer." The face of the warrant describes the property sought as:

"* * * Books and records of the Hotel Roosevelt, Inc.; The Pub, Inc.; Ben Kay, Inc.; Tower Tavern, Inc.; Melody Lane, Inc.; Bonfire, Inc.; Badger State Boxing Club, Inc.; and Frank Peter Balistrieri."

As alleged grounds for search and seizure, the warrant recites that said books and records are —

"* * * harbored and concealed from examination of the Internal Revenue Service, in violation of the criminal provisions of Section 7210 Internal Revenue Code of 1954, and which are instrumentalities of crime involving the criminal provisions of Section 1621, Title 18, United States Code of Laws, and Section 7201, Internal Revenue Code of 1954."

The following findings and conclusions of the court are based on the moving papers, briefs, evidence adduced on the hearing of the motion, and arguments of counsel.

As appears from the face of the warrant, the articles sought thereunder are merely described as books and records of certain named parties. This description leaves the choice of objects to be seized entirely to the discretion of the persons conducting the search and seizure. A warrant lacking particularity of description of the things to be seized thereunder would purport to authorize a general exploratory search which is condemned by the Fourth Amendment to the Constitution of the United States. Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); and Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948).

Reference to further definition of the objects sought, as found on the face of the warrant under alleged grounds for search and seizure, does not furnish essential particulars for the guidance of the officials executing the warrant. Reference to the affidavit in support of the warrant does reveal that the affiant sought certain books and records relating to the computation of the taxable income of the parties, generally for the years from 1955 through 1961, and particularly those papers which the Internal Revenue Service had repeatedly sought to have produced for purposes of inspection by the issuance of summonses pursuant to Section 7602 et seq., Title 26 U.S.C.A., Internal Revenue Code 1954.

In this case there can be no reliance on the supporting affidavit to furnish a sufficient description of the articles sought because the affidavit itself does not particularize the items sought by summonses issued under Section 7602, Title 26 U.S.C.A. This information was not communicated by the affiant to the United States Commissioner who issued the warrant. There was no showing that this information was made available to other officers authorized to execute the warrant or to the persons whose premises were searched and whose property was seized. In the event it were deemed that the affidavit furnished sufficient description of the property sought, there was no showing that said affidavit was annexed to the warrant or otherwise available for the guidance of officials, other than affiant, who were authorized to execute the search and seizure. Compare United States v. Snow, 9 F.2d 978 (D.Mass.1925), and Vinto Products Co. v. Goddard, 43 F.2d 399 (D.Minn.1930), where recourse was had to affidavits attached to said warrants.

The affidavit in support of the warrant does not show probable cause for a reasonable belief that all of the documents sought were being harbored and concealed by Jennie Alioto at the premises to be searched. From an analysis of the affidavit, it appears that there is a basis for the belief that Jennie Alioto lived at the designated premises. Although there is no allegation as to the reliability of Clarence Casper as a source of information, it appears that knowledge as to the identity of the tenants would be within the knowledge of Mr. Casper in his capacity as building superintendent. The confusion of Mr. Casper and the possible unreliability of information furnished by him as demonstrated on the hearing is not fatal to the allegations of the affidavit since the issuance of the warrant rests on the showing of the affiant.

There is also some basis for the belief that Jennie Alioto kept some records at her apartment. Jennie Alioto testified in January 1962 that on occasion she kept some records of the Hotel Roosevelt, Inc., and The Pub, Inc., at her home and worked thereon. However, the information that Jennie Alioto was also the bookkeeper for Ben-Kay, Inc., and the Bonfire, Inc.; that Frank Peter Balistrieri, whose relationship to the corporate taxpayer entities is not set forth in the affidavit, frequently visited Jennie Alioto's apartment; that Jennie Alioto had the lock on her door changed without permission; that she had filing cabinets on the premises; and that few, if any, books and records had been produced in response to summonses does not support an inference that books and records, if they existed, of Ben-Kay, Inc.; Tower Tavern, Inc.; Badger State Boxing Club, Inc.; Melody Lane, Inc.; Bonfire, Inc.; and Frank Peter Balistrieri were harbored in Jennie Alioto's apartment.

To the extent that summonses for the production of books and records of corporations and of one individual were issued, and to the extent that existing books and records were withheld in disobedience of summonses, the withholding of such documents would be unlawful, and the papers themselves, although relating to a lawful enterprise, would take on the nature of contraband subject to search and seizure as the fruit of a crime. Rule 41(b) (2), Federal Rules of Criminal Procedure. Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L. Ed. 231 (1927); Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L. Ed. 647 (1921); United States v. Thompson, 113 F.2d 643 (7th Cir. 1940).

The crime of disobedience of summonses is a misdemeanor offense. Section 7210, Title 26 U.S.C.A. Rule 41 of the Federal Rules of Criminal Procedure makes no distinction between felony and misdemeanor crimes. Cf. Conyer v. United States, 80 F.2d 292 (6th Cir. 1935), which did not state the general law prevailing at the time of the adoption of the criminal rules, but was concerned only with a specific statutory search warrant authorization under the Espionage Act and was limited to search and seizure of means of committing a felony.

The showing of the affidavit fails to support the alleged ground for search and seizure that all of the objects sought under the warrant were harbored and concealed in disobedience to summonses. An important defect of the affidavit in this respect is the failure to particularize which documents had been the objects of summonses which had been disobeyed. Since it is not disclosed which books and records were summoned, it cannot be known which books and records were not produced and would constitute instrumentalities or fruits of the crime of disobedience to summonses. Further, the existence of any books and records rests on an inference to be drawn from the allegations of the affidavit that Jennie Alioto was the bookkeeper for the Hotel Roosevelt, Inc., The Pub, Inc., Ben-Kay, Inc., and Bonfire, Inc., and that the work papers of the accountants for these...