Lopiparo v. United States
| Decision Date | 29 October 1954 |
| Docket Number | No. 15089.,15089. |
| Citation | 216 F.2d 87 |
| Parties | Anthony LOPIPARO, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Sidney M. Glazer, St. Louis, Mo. (Godfrey P. Padberg, St. Louis, Mo., was with him on the brief), for appellant.
Max H. Goldschein, Sp. Asst. to the Atty. Gen. (William K. Stanard II, Asst. U. S. Atty., St. Louis, Mo., was on the brief), for appellee.
Before SANBORN, JOHNSEN and COLLET, Circuit Judges.
This is an appeal from a judgment and order of the District Court committing the appellant, Anthony Lopiparo, for contempt for refusing to comply with an order of the court requiring him, as President of the Twin City Distributing Company, a corporation, of St. Louis, Missouri, to produce before the Grand Jury certain books of that Company.
On May 19, 1954, the appellant, with his counsel, was before the court in the presence of the Grand Jury. Counsel for the Government advised the court that the appellant, a witness who appeared before the Grand Jury under subpoena, had, on the day before, been asked, as President of the Twin City Distributing Company, to bring before the Grand Jury the books of the Company; that the appellant claimed his privilege against self-incrimination; that he was then directed to bring the books and have his counsel with him before the Grand Jury on the morning of May 19, 1954; that he was before the Grand Jury on that morning, and upon being asked whether he had brought the books for the year 1953 with him, claimed his privilege and refused to answer any questions about the Company's books. The hearing before the court was, on request of appellant's counsel, continued until 2:00 P.M. At that time appellant's counsel asked for more time to show his client's background and that he was reputed to be "a hoodlum, a gangster of renowned reputation," with a long criminal record.
Counsel for the Government stated that, if true, those facts would present no legal reason for not producing the Company's records; that all the Grand Jury was asking for was these records; and that appellant "can either bring the books before the Grand Jury or show the Grand Jury that he does not have the books and can't comply." Upon being questioned by the court, the appellant stated that he had not produced the books, as requested by the Grand Jury, because he did not know who had them. The court directed him to have the books before the Grand Jury at 10:00 o'clock on May 20, without fail.
The appellant, with his counsel, was again brought before the court at 10:00 o'clock on the morning of May 20. Appellant's counsel stated what his client had told him about having attempted to locate the books without success. The court directed the appellant to take the witness stand. At the conclusion of the appellant's testimony relative to his efforts to locate the books and as to other matters, the court, on its own motion and without objection from counsel, ordered all of the testimony stricken on the ground that the court's action in directing the appellant to take the stand might be regarded as coercive and prejudicial to his rights.
Counsel for appellant then stated to the court that he had only one witness present, that he had not been able to subpoena others, and that he would like additional time. Counsel for the Government stated that the Grand Jury was waiting and that he would like to continue "as far as we can go."
The Government produced evidence to the effect that the appellant was President of the Twin City Distributing Company and owned 48.7% of its common stock; that Anthony Giondono was Vice-President and owned 29.2% of its stock; and that Ralph Caleca was Secretary-Treasurer and held 22.1% of the stock. Counsel for the appellant asked for additional time to show that it was physically impossible for the appellant to produce the books. Counsel for the Government stated that the appellant had had three days to bring in the books, and that his failure to comply with the court's order was a deliberate defiance of that order. Government counsel urged that the appellant be committed for contempt.
The appellant then produced as a witness Andrew Devoti, who testified that he was a public accountant and that in 1953 his wife worked three days a week for the Twin City Distributing Company; that appellant came to his home the night of May 19, 1954, and asked both him and his wife if they knew where the books of the Company were, and that they told him they did not know; that he (Devoti) did not know where the books were; that when they (the Devotis) were through with the books they brought them back to the Company's office; that he personally left them there; and that the last time he brought them back was, he believed, about the first week in September, 1953, in the nighttime.
The court then stated that it would give the appellant one further chance to comply with the order of the court, and allowed him until 2:00 o'clock that afternoon (May 20, 1954) to produce the journal and general ledger of the Company of which he was the President, and ordered him to have them at that time. Appellant's counsel then said, "In the Grand Jury room or down here, Your Honor?" The court replied:
At 3:50 P.M. on May 20 the court was advised that the appellant had again appeared before the Grand Jury, but had not produced the books as ordered by the court. At the request of Government counsel, further hearing was postponed until May 21 at 10:00 o'clock. At that time and in the presence of the Grand Jury, counsel for the Government read to the court the questions asked of the appellant before the Grand Jury on the afternoon of May 20 and his answers. The appellant had testified that he had "tried every which way to find them books"; that he could not locate them; that he had asked his auditor and the girl who worked in the office if they knew where the books were, and had talked to Mr. Giondono, the Vice-President, and Mr. Caleca, the Secretary-Treasurer, of the Company; that none of them knew where the books were; that the Sheriff who had padlocked the office might have taken the files. He also testified that it could have been nine to ten months since he saw the books; that it might have been in September, 1953; that he believed "that is when they arrested us, put a padlock on"; that on the last occasion he was in the office he did not look to see if the books were there. When asked who was in charge of the office when he left and when he was absent, he claimed his privilege against self-incrimination. He testified that the Sheriff had taken possession of the office under an attachment because it was said the Twin City Distributing Company was "charged with having counterfeit cigarette stamps."
We quote the following questions and the appellant's replies before the Grand Jury on the direct examination by counsel for the Government:
Following the reading of the questions asked the appellant and the answers given by him before the Grand Jury, counsel for the appellant stated that he had some witnesses present. The court asked if the witnesses would tell where the books were. Counsel stated that he did not know; that he had present the Clerk of the Circuit Court of the City of St. Louis, who would testify that an attachment was issued and delivered to the Sheriff of the City of St. Louis, who was also present in the courtroom; and that he (counsel) would like to have the Sheriff take the stand to show that, under the writ of attachment, he went out to Twin City Distributing Company and took everything in possession and stored it. The court asked whether the Sheriff would testify that he had the books. Counsel stated that he had never asked him. The court told counsel to find out what the Sheriff would testify, and to make an offer of proof. After consulting with the Sheriff, counsel stated that the Sheriff had given him a list of the articles taken under the writ of attachment. The court stated that it was not interested in what articles were taken under the writ of attachment, but wanted to know where the books were.
Counsel for the appellant then made an offer to prove by police officers and a deputy sheriff that on September 11, 1953, the appellant and others connected with the Twin City Distributing Company...
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