United States v. Birrell

• Citation: 243 F. Supp. 38
• Parties: UNITED STATES of America, v. Lowell M. BIRRELL, Defendant.
• Decision Date: 01 July 1965
• Court: U.S. District Court — Southern District of New York

243 F. Supp. 38

UNITED STATES of America, v. Lowell M. BIRRELL, Defendant.

United States District Court S. D. New York.

July 1, 1965.

Robert M. Morgenthau, U. S. Atty. for Southern District of New York, for

United States of America; Paul R. Grand, Thomas J. Cahill, Asst. U. S. Attys., of counsel.

William B. Pennell, Menahem Stim, New York City, for defendant.

WYATT, District Judge.

By orders filed June 11, D.C., 242 F. Supp. 191 and 25, D.C., 243 F.Supp. 36, 1965, the motion of defendant Birrell under Fed.R.Crim.P. 41(e) was decided except (1) as to those papers obtained by the District Attorney of New York County on July 24, 1959 and (2) as to whether there was any reason why the records, or any part, should not be returned to movant Birrell.

The parties were heard as to these two matters on June 28, 1965. At that time George C. Levin, Esq., Trustee in Chapter X Reorganization Proceedings of Swan-Finch Oil Corporation and Edward C. Kalaidjian, Esq., attorney for the Trustee in Chapter X Reorganization Proceedings of Equitable Plan Company were also heard on the matter referred to as (2) above.

1.

There was little, if any, dispute as to the facts of the July 24, 1959 incident.

A grand jury for New York County had returned an indictment against Birrell and was continuing its investigation.

In some manner, Assistant District Attorney Hallisey learned that Joseph A. De Risi, a bookkeeper living in Teaneck, New Jersey, knew something about the books and records of Birrell and of corporations with which Birrell had been connected.

Sometime shortly after July 15, 1959, Hallisey asked the Teaneck Police Department to secure a statement from De Risi about the records. Lieutenant Morgan of the Teaneck Police then telephoned De Risi at his home between nine and ten at night and asked him to come to the Police Department. De Risi went and, after questioning by Morgan, signed a statement prepared by Morgan. (This statement must have been then forwarded to Hallisey.)

Hallisey then telephoned De Risi in Teaneck and asked him if he would come in to the District Attorney's office. De Risi agreed to do so on July 23, 1959. On the morning of that day De Risi became ill and telephoned Morgan, asking Morgan to make his excuses with the New York County District Attorney.

De Risi testified that Hallisey called him shortly thereafter and asked why he was not coming in, that he (De Risi) replied that he was ill, that Hallisey said if De Risi did not come in they would come over (presumably to Teaneck) and bring him in "by the scruff of the neck", that he replied that they could do so but should bring a container as he was very nauseated, that Hallisey then asked if he would come in the next day, and that he agreed to do so.

The next day — July 24, 1959 — De Risi went in the morning to the office of Hallisey in New York and there apparently talked freely about his employment and whatever else about which Hallisey asked.

It developed that De Risi had been employed at one time either by Birrell or by corporations in which Birrell was interested. It is clear that De Risi was not employed by Birrell on July 24, 1959.

In July 1959 and before then, De Risi was and had been keeping the books of six corporations: Bucks County Farms, Inc., Echo Falls Farms, Inc., Oil Development Management Co., William Penn Fire Insurance Co., Buxmont Co., and Exco Co. These were corporations in which Birrell had been or was then interested. Except for Bucks County Farms, Inc., these corporations were inactive in 1959 and only a minimum of bookkeeping needed to be done. De Risi did his bookkeeping work in the garage-office of Jonathan Dunn, an attorney for Birrell, on Sugar Bottom Road, Furlong, Bucks County, Pennsylvania, where the books and records were kept. He had free access to the premises, had a key to the garage-office, came and went as he pleased to work on the books and records. Apparently this work was not full time.

It appears that for Federal withholding tax purposes, Dunn reported as the employer of De Risi for his work for the six corporations and De Risi was paid by personal check of Dunn. This does not exclude that De Risi was in fact employed by the corporations for the work done for them.

De Risi had been an officer of the six corporations and when he talked to Hallisey believed that he still was an officer of those corporations. From what De Risi told him, Hallisey reasonably believed that De Risi was such an officer.

De Risi testified at this hearing, however, that he had resigned as an officer of the corporations in 1957 at the direction of Birrell. At least as to Bucks County Farms, Inc., De Risi continued to act as an officer after his resignation.

Dunn was an officer of the six corporations in July 1959.

During his talk with Hallisey, De Risi told Hallisey that he wanted to cooperate with the District Attorney's office. Hallisey asked him if he would turn over the records of the six corporations whose books he was keeping and of which Hallisey believed him to be an officer. De Risi said that he would but wanted to be sure he had some protection from criticism — whether from Dunn, Birrell, or from others I cannot be sure. At any rate, Hallisey issued and gave to De Risi a subpoena duces tecum requiring him to appear "forthwith" before the Grand Jury with "all books and records, including * * * of the six corporations. Hallisey said that he would send a Police Detective in a car with De Risi to pick up the records. De Risi stated that he was leaving that afternoon by car to visit his daughter. Hallisey said he would be later in leaving than he (De Risi) had expected, because of the ride to get the records. De Risi then called his wife and explained why he would be late.

De Risi was then driven by the Detective to the Dunn garage-office in Pennsylvania. There De Risi let himself in with his key, picked out — from among the numerous other records already considered on this motion — the records of the six corporations, and gave them to the Detective. De Risi was then dropped off at his home by the...