United States v. Albanese, 273-274

Decision Date02 June 1955
Docket NumberNo. 273-274,Dockets 23426-23427.,273-274
Citation224 F.2d 879
PartiesUNITED STATES of America, Appellee, v. Philip ALBANESE and Rosario Albanese, Defendants, Philip Albanese, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

COPYRIGHT MATERIAL OMITTED

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 barred by the three-year period applicable to crimes enumerated by the criminal code, but held the alleged conspiracy to violate 26 U.S.C. § 145(b) not barred because governed by the special six-year limitation statute, 26 U.S. C.A. § 3748, applicable to certain crimes arising under the Internal Revenue laws. United States v. Albanese, D.C., 123 F. Supp. 732. The judge concluded that the indictment need not be dismissed and re-submitted to the jury merely to delete the reference to the statute now inapplicable, since the reference should be regarded as surplusage and ignored. We think this ruling proper. Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610. See also United States v. Hutcheson, 312 U.S. 219, 229, 61 S.Ct. 463, 85 L.Ed. 788; Pruett v. United States, 9 Cir., 3 F.2d 353; Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 71 L.Ed. 793.

3. Before trial, the defendants made a motion to dismiss two counts of the indictment for improper venue, which Judge Kaufman denied. United States v. Albanese, D.C., 117 F.Supp. 736. The counts, dealing with different years, alleged that the defendants knowingly attempted to evade a part of the taxes owed to the government by preparing, causing to be prepared, and causing to be mailed in the Southern District of New York, and by filing and causing to be filed with the Collector of Internal Revenue in Albany, a...

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  • U.S. v. Southland Corp., s. 479
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 23, 1985
    ...the defendants the support that is claimed. On the other hand, United States v. Albanese, 123 F.Supp. 732 (S.D.N.Y.1954), aff'd, 224 F.2d 879 (2 Cir.), cert. denied, 350 U.S. 845, 76 S.Ct. 87, 100 L.Ed. 753 (1950), does not give the Government all the support for which it contends. This lea......
  • United States v. Culoso
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 31, 1978
    ...United States v. Brasco, 516 F.2d 816, 818 (2d Cir. 1975); United States v. Albanese, 123 F.Supp. 732, 734 (S.D.N.Y. 1954), aff'd 224 F.2d 879 (2d Cir.), cert. denied 350 U.S. 845, 76 S.Ct. 87, 100 L.Ed. 753 (1955); United States v. Flynn, 103 F.Supp. 925, 927 (S.D.N.Y.1951), aff'd, 216 F.2......
  • Lott v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 7, 1963
    ...with filing the return, the substantive offense being the willful attempt to evade and defeat the payment of the tax. In U. S. v. Albanese, 2 Cir., 1955, 224 F.2d 879, the indictment alleged in part as follows: "* * * preparing, causing to be prepared, and causing to be mailed in the Southe......
  • United States v. Allied Stevedoring Corp.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 4, 1957
    ...so on his own, or that the other two did not "aid" and "abet" him; and, if so, they were "principals." Our decision in United States v. Albanese, 2 Cir., 224 F.2d 879, is not reconcilable with any other theory; and this was likewise the ruling in Imholte v. United States, 8 Cir., 226 F.2d 5......
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