United States v. Birrell
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | William B. Pennell, Menahem Stim, New York City, for defendant |
| Citation | 243 F. Supp. 38 |
| Parties | UNITED STATES of America, v. Lowell M. BIRRELL, Defendant. |
| Decision Date | 01 July 1965 |
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
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
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United States v. Birrell, No. 61 Cr. 692.
...This motion was decided by Judge Wyatt in June and July, 1965. United States v. Birrell, 242 F.Supp. 191 (1965); 243 F.Supp. 36 (1965); 243 F.Supp. 38 On September 27, 1966, Chief Judge Sugarman assigned the case to this Court for all purposes. Defendant then moved, on October 28, 1966, (1)......
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United States v. Birrell, No. 61 Cr. 692.
...201 (1965). By a subsequent order, Birrell was adjudged entitled to the return of these records belonging to him upon proof of ownership. 243 F.Supp. 38, 41 For two periods in 1965—one prior to and the other subsequent to the suppression order—Birrell was authorized by court order to inspec......
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United States v. US CURRENCY, ETC., No. 80 CR 00061.
...as on a motion to suppress, lawful possession must be established by a preponderance of the evidence, see United States v. Birrell, 243 F.Supp. 38, 41 (S.D.N.Y.1965); United States v. Van Allen, 28 F.R.D. 329, 341 (S.D.N.Y.1961); United States v. Lyon, 397 F.2d 505 (7th Cir.), cert. denied,......
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United States v. Birrell, No. 61 Cr. 692.
...This motion was decided by Judge Wyatt in June and July, 1965. United States v. Birrell, 242 F.Supp. 191 (1965); 243 F.Supp. 36 (1965); 243 F.Supp. 38 On September 27, 1966, Chief Judge Sugarman assigned the case to this Court for all purposes. Defendant then moved, on October 28, 1966, (1)......
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United States v. Birrell, No. 61 Cr. 692.
...201 (1965). By a subsequent order, Birrell was adjudged entitled to the return of these records belonging to him upon proof of ownership. 243 F.Supp. 38, 41 For two periods in 1965—one prior to and the other subsequent to the suppression order—Birrell was authorized by court order to inspec......
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United States v. US CURRENCY, ETC., No. 80 CR 00061.
...as on a motion to suppress, lawful possession must be established by a preponderance of the evidence, see United States v. Birrell, 243 F.Supp. 38, 41 (S.D.N.Y.1965); United States v. Van Allen, 28 F.R.D. 329, 341 (S.D.N.Y.1961); United States v. Lyon, 397 F.2d 505 (7th Cir.), cert. denied,......