Lawn v. United States Giglio v. United States

Citation355 U.S. 339,2 L.Ed.2d 321,78 S.Ct. 311
Decision Date13 January 1958
Docket NumberNos. 9,10,s. 9
PartiesHoward LAWN, Petitioner, v. UNITED STATES of America. William GIGLIO and Frank Livorsi, Petitioners, v. UNITED STATES of America
CourtU.S. Supreme Court

See 355 U.S. 967, 78 S.Ct. 529.

[Syllabus from pages 339-341 intentionally omitted] Mr. Milton Pollack, New York City, for petitioner Lawn.

Mr. Joseph Leary Delaney, New York City, for petitioners Giglio and Livorsi.

Mr. Roger D. Fisher, Washington, D.C., for respondent.

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 statute (18 U.S.C. § 371, 18 U.S.C.A. § 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 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, 2 Cir., 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, 77 S.Ct. 91, 1 L.Ed.2d 74. 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.

Petitioners ask this Court to reverse their convictions upon four main grounds. First, they contend, Lawn only 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. 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 warning them of their constitutional privilege against self-incrimination, violated their Fifth Amendment rights. It therefore dismissed the indictments and directed the Government 'to return, to the respective defendants, the partnership and personal records produced by them in response to the subpoenas.' United States v. Lawn, D.C., 115 F.Supp. 674, 678. The Government appealed from that order but the appeal was dismissed as untimely on October 19, 1953. United States v. Roth, 2 Cir., 208 F.2d 467.8 While that appeal was pending the Government caused a new investigation to be made of petitioners' federal income tax liabilities by another grand jury, before whom petitioners did not appear, and on July 23, 1953, that grand jury returned the present indictment which was sealed. After the Government's appeal from the order dismissing the 1952 indictment had been dismissed (United States v. Roth, supra) the new sealed indictment was opened, and soon afterward petitioners moved (1) to dismiss the indictment, and in that connection (2) to have a hearing to determine whether the Government had used testimony given or documents produced by petitioners before the 1952 grand jury, or evidence obtained through leads and clues furnished thereby, in procuring the indictment, and (3) to inspect he minutes of the grand jury and, if the motion to dismiss the indictment be denied, (4) to suppress the use at the trial of all testimony and documents procured from petitioners in the 1952 grand jury proceeding and all evidence derived therefrom. These motions were submitted to the court upon affidavits.9 After considering them and hearing extensive arguments of counsel, the court found that the affidavits left no room for an inference that the Government had used illegally obtained materials in securing the present indictment, that petitioners' claim did not have the 'solidity' required to justify the holding of such a hearing, and that to do so 'on the basis of the showing made by the defendants and the Government would indeed be subordinating 'the need for rigorous administration of justice to undue solicitude for potential * * * disobedience of the law by the law's officers.' (Nardone v. United States, 308 U.S. 338, 342, 60 S.Ct. 266, 268, 84 L.Ed. 307.)' United States v. Giglio, D.C., 16 F.R.D. 268, 270. The court declined to hold the requested hearing and denied the motion to inspect the grand jury minutes and the motion to dismiss the indictment. The court also denied the motion to suppress,10 but in that connection said: 'Of course, if dur- ing the course of the trial defendants have reason to believe that illegally obtained material is being or may be used against them, they can object at that time and it will be incumbent upon the trial judge to rule on their objections.' United States v. Giglio, supra, 16 F.R.D. at page 271.

Pursuant to order of the court the Government produced for inspection by petitioners, before the trial, the corporate records delivered by Giglio to the 1952 grand jury in compliance with its subpoena, the documents which had been abandoned by petitioners and examined by the Government, and the documents relating to petitioners' businesses obtained from the New Jersey receiver. At the beginning of the trial petitioners renewed the above-mentioned motions which were again denied. In the course of the trial the Government furnished petitioners a transcript of their testimony before the 1952 grand jury.


As stated, petitioners first contend that they were deprived of due process by the refusal of the court to conduct the requested full-dress hearing to enable them to attempt to determine whether materials obtained from them in the 1952 grand jury proceeding, or evidence derived therefrom, was considered by the 1953 grand jury. We believe there is no merit in this contention. The District Court's order dismissing the 1952 indictments because of the use of such evidence before that grand jury, though final, could not in any way determine that any direct or derivative use of such evidence was made by the 1953 grand jury that returned the present indictment. The affidavits submitted in support of and in opposition to the motion for the requested hearing disclosed,...

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