United States v. Cosolito, Crim. No. 79-436-C.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Writing for the Court: John Wall, Harry C. Mezer, Cullen & Wall, Boston, Mass., for defendant Cosolito
• Citation: 488 F. Supp. 531
• Parties: UNITED STATES of America, Plaintiff, v. Frank COSOLITO and Ralph Russo, Defendants.
• Decision Date: 05 May 1980
• Docket Number: Crim. No. 79-436-C.

488 F. Supp. 531

UNITED STATES of America, Plaintiff,
v.
Frank COSOLITO and Ralph Russo, Defendants.

Crim. No. 79-436-C.

United States District Court, D. Massachusetts.

May 5, 1980.

488 F. Supp. 532

Stanley E. Greenidge, Atty., U.S. Dept. of Justice, Crim.Div., Washington, D.C., for plaintiff.

John Wall, Harry C. Mezer, Cullen & Wall, Boston, Mass., for defendant Cosolito.

Frank A. Marciello, Jr., Somerville, Mass., for defendant Russo.

MEMORANDUM

CAFFREY, Chief Judge.

This matter came before the Court on defendant Frank Cosolito's motion to dismiss a three-count indictment; an evidentiary hearing was held. The indictment charges that Cosolito and co-defendant Ralph Russo conspired to and, on December 9, 1974, gave money to two officials of the United States Internal Revenue Service in order to influence them to "fix" an outstanding tax liability of Cosolito, in violation of 18 U.S.C. § 201(b)(2) and 18 U.S.C. § 371. The indictment was returned by the grand jury on December 4, 1979, a few days before the five-year statute of limitations, 18 U.S.C. § 3282, was to expire, whereupon, on application of the government and by order of this Court, the indictment was sealed until February 4, 1980. Cosolito asserts two grounds for dismissal. First, he contends that the almost five-year delay between the commission of the crime and the return of the indictment violated his rights under the Due Process Clause of the Fifth Amendment. Second, he contends that the indictment was improperly sealed for a period beyond the statute of limitations.

After hearing, I find the relevant facts to be as follows. On December 9, 1974, defendant Cosolito had a meeting with Richard Annicharico, Special Agent, Internal Revenue Service, and Edward Finn, Revenue Officer, Internal Revenue Service, at a coffeeshop in Logan Airport, Boston, Massachusetts. At that time, Cosolito gave $3,500.00 to Annicharico and Finn in order to influence them to certify that an investigation into the tax liability of Cosolito for the years 1964 up to and including 1969, 1972, and 1973 was discontinued and that an outstanding liability to the United States of approximately $30,000 in unpaid taxes, penalties, and interest payments was extinguished. There was evidence that Cosolito generated the unreported income in illegal bookmaking activity. Annicharico, who was attached to the IRS office in New York, and Finn, who was attached to the IRS office in Boston, were posing as corrupt IRS agents.

Agent Annicharico testified that he first met defendant Russo at a meeting November 1, 1974 at an airport in New York City. That meeting was arranged by one John Ellsworth, a government informant. Ellsworth was present at the November 1 meeting, but sat down at a different table after introducing Russo and Annicharico. It appears that Russo was acting as an intermediary for Cosolito.

Agent Annicharico testified that he first met defendant Cosolito at a meeting held later in November at Logan Airport. Also present at that meeting were Agent Finn

488 F. Supp. 533

and defendant Russo. Ellsworth was not present at that meeting

After the December 9, 1974 meeting during which the bribe was made, Agent Annicharico had several more telephone conversations with Cosolito. Annicharico testified that these conversations were usually initiated by calls from Cosolito to Annicharico's office in New York. The last conversation took place in March of 1976. Annicharico stated that one purpose of the calls was Cosolito's desire to have a tax lien removed on his house. He also testified that there had been no mention of the tax lien until the December 9 meeting. A review of the transcript of that meeting reveals that Cosolito was informed by Agents Finn and Annicharico that although the liens would not be removed right away, they would be removed shortly thereafter since the cases were now closed. There was also testimony that Cosolito possibly had a second purpose for calling Annicharico — to introduce Annicharico to other persons seeking to have their tax problems solved. Annicharico testified that there was discussion at the December 9, 1974 meeting about Cosolito introducing Annicharico to friends who needed tax help, but it is unclear whether it was Cosolito or Annicharico who initiated this discussion. After that discussion, according to Annicharico's testimony, Cosolito called him in April of 1975 to arrange a tax fix for some "politician." From the transcript of that conversation, dated April 15, 1975, it appears that Cosolito made only a passing reference to this politician in response to a question by Annicharico as to whether Cosolito had any friends that needed help. Moreover, from the context of the conversation it appears equally likely that Cosolito misunderstood the question and was referring to a politician who could help him or his friends rather than a politician who needed help. In any event, the government has not convinced me that Cosolito attempted in any significant way to introduce other persons to Annicharico. And, I find that after March of 1976 he had no contact with Annicharico at all.

From December 1974 to June 1977, Agent Annicharico was not involved in any substantial undercover investigations, although he did testify he undertook some "spot work." Starting in June 1977, however, Annicharico became involved in an undercover capacity in an investigation in Brooklyn, New York. The Internal Security Division of the IRS had received information that one Victor Puglisi, negotiating on behalf of others, was seeking to offer a bribe with respect to a tax investigation then being conducted by the IRS in the New York area. Annicharico volunteered to pose as a corrupt government agent and, on or about June 21, 1977, met and tape recorded a conversation with Puglisi in which Puglisi asked Annicharico if he would compromise an investigation into tax violations by one Andrew T. Russo (not related to the defendant in this case). On January 12, 1978, Puglisi did in fact pay Annicharico some $7,000 to "fix" the Russo tax investigation.

Thereafter, Puglisi introduced Annicharico to many other individuals interested in compromising their tax liability, some or all of them members of a New York organized crime family. From June 21, 1977 to February 4, 1980, when the Brooklyn investigation ended, Annicharico tape recorded and/or transmitted in excess of five hundred conversations with Puglisi and those individuals to whom Puglisi introduced him. There is no question that Annicharico was dealing with extremely dangerous individuals and he testified that he has been under 24 hour protection since the Brooklyn investigation ended with the return of an indictment in February.

The person who first informed the IRS that Puglisi was interested in compromising a tax investigation was John Ellsworth. Ellsworth did not contact Annicharico directly but relayed the information to IRS Inspector Harold Wenig. Annicharico testified that Ellsworth was not present at the June 21, 1977 meeting between Annicharico and Puglisi.

Puglisi knew Annicharico had engaged in a corrupt deal in Boston. Annicharico testified that, over the course of his dealing

488 F. Supp. 534

with Puglisi, Puglisi made it clear to him that he had learned of the Boston deal from Ellsworth. Although there was also testimony by Annicharico that Puglisi might have had an additional source, someone described as a "half-assed wiseguy" who Puglisi either met in Ellsworth's office or overheard Ellsworth telling that Annicharico did some deals in Boston, later testimony established, and I find, that this individual was not Cosolito or Russo

With regard to Cosolito, Annicharico expressly testified that Cosolito did not introduce him to Puglisi, and that Cosolito's name never came up in his many discussions with Puglisi. Annicharico further testified that he had no knowledge that...