United States v. Albanese, No. 273-274

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: CLARK, FRANK and STALEY, Circuit
• Citation: 224 F.2d 879
• Parties: UNITED STATES of America, Appellee, v. Philip ALBANESE and Rosario Albanese, Defendants, Philip Albanese, Defendant-Appellant.
• Docket Number: No. 273-274,Dockets 23426-23427.
• Decision Date: 02 June 1955

224 F.2d 879 (1955)

UNITED STATES of America, Appellee,
v.
Philip ALBANESE and Rosario Albanese, Defendants,
Philip Albanese, Defendant-Appellant.

Nos. 273-274, Dockets 23426-23427.

United States Court of Appeals Second Circuit.

Argued April 14, 1955.

Decided June 2, 1955.

224 F.2d 880

COPYRIGHT MATERIAL OMITTED

224 F.2d 881

Archibald Palmer, Samuel Masia, New York City, for appellant

J. Edward Lumbard, U. S. Atty., for the Southern Dist. of New York, New York City (Peter M. Brown, New York City, of counsel), for appellee.

Before CLARK, FRANK and STALEY, Circuit Judges.

FRANK, Circuit Judge.

1. Viewing the facts, as we must, on appeal, most favorably to the prosecution, the evidence showed the following: Philip Albanese was the owner of a profitable truck-loading business at several piers along the Manhattan waterfront. He operated behind a paper wall of false and fictitious records to disguise his own financial interests. The two truckers of fruits and vegetables, who were his sole customers, paid appellant's fees to a collection agency which, in turn, paid cash to Albanese or his agents. The collection agency maintained no records and those records which they supplied to Albanese were destroyed. Ostensible owners of the business, as listed on identification papers required by government agencies, were Rosario Albanese for a part of the period covered by the indictment and Rocco Guarino during much of the remainder of the period. Actually neither was owner and, during a part of the period for which Guarino was listed as one, he had no connection whatever with the business. The real owner at all times was Philip Albanese who, however, was listed during most of the period in question on the payroll records as a dock worker. The prosecution introduced many details of the various unorthodox business practices which disguised the extent of the profits and the identity of the owner.

Tax returns for Philip Albanese were prepared by G. Joseph Moscarella, an accountant, on the basis of false information supplied to him by Albanese's agents. The information, and therefore the returns, considerably understated Albanese's income. For three of the four tax years in question, the tax returns were signed with Albanese's name by the accountant, and in the fourth year signed in Albanese's name by Rosario Albanese, who stood trial with him. There was ample evidence that appellant knew of, and directed, all of these activities.

2. Appellant moved, before Judge Goddard, to dismiss Count I of this second indictment which charged a conspiracy to violate 26 U.S.C. § 145(b) and 18 U.S.C. § 1001, as barred by the statute of limitations. Judge Goddard held the alleged conspiracy to violate 18 U.S.C. § 1001...