Russo v. United States, No. 91

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtCLARK, , and LUMBARD, and WATERMAN, Circuit
Citation241 F.2d 285
Decision Date08 February 1957
Docket NumberNo. 91,Docket 24193.
PartiesJames D. RUSSO, Appellant, v. The UNITED STATES of America, Appellee.

241 F.2d 285 (1957)

James D. RUSSO, Appellant,
v.
The UNITED STATES of America, Appellee.

No. 91, Docket 24193.

United States Court of Appeals Second Circuit.

Argued January 7, 1957.

Decided February 8, 1957.


241 F.2d 286

Corcoran, Kostelanetz & Gladstone, New York City (Boris Kostelanetz and Jules Ritholz, New York City, of counsel on the brief), for appellant.

Leonard P. Moore, U. S. Atty., for the Eastern Dist. of New York, Brooklyn, N. Y. (Kenneth C. Sternberg, Floral Park, N. Y., and Zachary Fromberg, Asst. U. S. Attys., Brooklyn, N. Y., of counsel on the brief), for appellee.

Before CLARK, Chief Judge, and LUMBARD, and WATERMAN, Circuit Judges.

LUMBARD, Circuit Judge.

James D. Russo appeals from the District Court's denial of two motions made before indictment: (1) under Rule 41(e), Federal Rules of Criminal Procedure, 18 U.S.C.A., to suppress evidence because it was obtained in violation of the Fourth Amendment to the Constitution and the statutes governing Treasury Department practice; and (2) to take the deposition of his former accountant, Mack, within twenty days after commencement of the action, pursuant to Rule 26(a), Federal Rules of Civil Procedure, 28 U.S.C.A.

Before the district court decision, an indictment was filed against Russo for attempted tax evasion and for assisting in the preparation of fraudulent tax returns of others. Internal Revenue Code of 1939, §§ 145(b), 3793(b) (1), 26 U.S.C.A. §§ 145(b) 3793(b) (1). On the basis of affidavits alone, Judge Rayfiel concluded (1) that the evidence had been voluntarily and legally disclosed; (2) that since an indictment had been filed, the Rules of Criminal Procedure governed and that under Rule 15(a) of those Rules no good ground for the deposition had been shown. Upon consideration of the facts as set out herein, we affirm the results below.

Russo, in addition to his regular employment as an assistant clerk in the office of the Clerk of the County of Richmond, prepared income tax returns and conducted an insurance brokerage business. During June and July 1952, Skolnick, a Special Agent of the Internal Revenue Service1 conferred with Russo in Staten Island and at Skolnick's office at the Intelligence Service headquarters. Although these meetings were largely in reference to the tax returns of others, apparently Russo's own returns were discussed as well.

241 F.2d 287

In September 1952, Revenue Agent Foley2 was assigned to examine Russo's own returns as well as those prepared by Russo for others. In early 1952, Russo retained as counsel one Frank D. Paulo from whom Foley obtained a waiver of the statute of limitations. In May 1953 Foley contacted Paulo in order to examine Russo's books; also in May, Skolnick had an interview with Russo at which Paulo was present. At this interview, Russo agreed...

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17 practice notes
  • Di Bella v. United States, No. 349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 23, 1960
    ...States, 2 Cir., 1942, 125 F.2d 915; cf. United States v. Klapholz, 2 Cir., 1956, 230 F.2d 494; United States v. Russo, 2 Cir., 1957, 241 F.2d 285. We hold the order made by the District Court in this case to be The motion was argued before the District Court by counsel on either side and af......
  • Matthews v. US, Action No. 2:93cr66.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • February 13, 1996
    ...from the later criminal proceeding) (quoting Lapides v. United States, 215 F.2d 253, 254 (2d Cir. 1954); Russo v. United States, 241 F.2d 285, 287 (2d Cir.), cert. denied, 355 U.S. 816, 78 S.Ct. 18, 2 L.Ed.2d 33 (1957)); but see In re Harper, 835 F.2d at 1274 (holding that a narcotics suspe......
  • Di Bella v. United States United States v. Koenig, Nos. 21 and 93
    • United States
    • United States Supreme Court
    • March 19, 1962
    ...F.2d 245 (1946); In re Fried, 161 F.2d 453, 1 A.L.R.2d 996 (1947); Lapides v. United States, 215 F.2d 253 (1954); Russo v. United States, 241 F.2d 285 (1957); Carlo v. United States, 286 F.2d 841 (1961); Grant v. United States, 291 F.2d 227 (1961); Greene v. United States, 296 F.2d 841 (196......
  • White Fabricating Co. v. U.S., No. 89-3245
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 8, 1989
    ...citing Lapides v. United States, 215 F.2d 253 (2d Cir.1954) (Rule 41(e) motion treated as civil complaint); Russo v. United States, 241 F.2d 285 (2d Cir.) cert. denied, 355 U.S. 816, 78 S.Ct. 18, 2 L.Ed.2d 33 (1957) (treated pre-indictment Rule 41(e) motion as independent civil proceeding);......
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17 cases
  • Di Bella v. United States, No. 349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 23, 1960
    ...States, 2 Cir., 1942, 125 F.2d 915; cf. United States v. Klapholz, 2 Cir., 1956, 230 F.2d 494; United States v. Russo, 2 Cir., 1957, 241 F.2d 285. We hold the order made by the District Court in this case to be The motion was argued before the District Court by counsel on either side and af......
  • Matthews v. US, Action No. 2:93cr66.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • February 13, 1996
    ...from the later criminal proceeding) (quoting Lapides v. United States, 215 F.2d 253, 254 (2d Cir. 1954); Russo v. United States, 241 F.2d 285, 287 (2d Cir.), cert. denied, 355 U.S. 816, 78 S.Ct. 18, 2 L.Ed.2d 33 (1957)); but see In re Harper, 835 F.2d at 1274 (holding that a narcotics suspe......
  • Di Bella v. United States United States v. Koenig, Nos. 21 and 93
    • United States
    • United States Supreme Court
    • March 19, 1962
    ...F.2d 245 (1946); In re Fried, 161 F.2d 453, 1 A.L.R.2d 996 (1947); Lapides v. United States, 215 F.2d 253 (1954); Russo v. United States, 241 F.2d 285 (1957); Carlo v. United States, 286 F.2d 841 (1961); Grant v. United States, 291 F.2d 227 (1961); Greene v. United States, 296 F.2d 841 (196......
  • White Fabricating Co. v. U.S., No. 89-3245
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 8, 1989
    ...citing Lapides v. United States, 215 F.2d 253 (2d Cir.1954) (Rule 41(e) motion treated as civil complaint); Russo v. United States, 241 F.2d 285 (2d Cir.) cert. denied, 355 U.S. 816, 78 S.Ct. 18, 2 L.Ed.2d 33 (1957) (treated pre-indictment Rule 41(e) motion as independent civil proceeding);......
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